DOCUMENT* 
DEPT. 


THE 

VIRGINIA   REPORT 

OF 

1799  —  1800, 

TOUCHING  THE 

ALIEN    AND   SEDITION    LAWS; 


TOGETHER  WITH  THE 


VIRGINIA   RESOLUTIONS 

OF  DECEMBER  21,  1798, 
THE  DEBATE  AND  PROCEEDINGS  THEREON 

IN  THE 

HOUSE    OF    DELEGATES    OF    VIRGINIA, 

•  AND 

SEVERAL  OTHER  DOCUMENTS 

• 

ILLUSTRATIVE  OF 

THE   REPORT  AND  RESOLUTIONS. 


RICHMOND: 

J.  W.  RANDOLPH,  121  MAIN  STREET, 

ALSO  FOR  SALE  BY  FRANCK  TAYLOR,  WASHINGTON  ;  GUSHING  ANT)  BROTHER, 

BALTIMORE;  AND  T.  AND  j.  w.  JOHNSON,  PHILADELPHIA. 
1850. 


/Giro 


Entered,  according  to  Act  of  Congress,  in  the  year  1850, 

BY  J.  W.  RANDOLPH, 
In  the  Clerk's  Office  of  the  District  Court  in  and  for  the  Eastern  District  of  Virginia. 


PHILADELPHIA: 

C.  SHERMAN,   PRINTER. 


PREFACE. 


THE  clesign  of  this  pamphlet,  an  edition  of  which  was  printed  at  Rich- 
mond some  years  ago,  is  to  convey  to  the  public  the  "  Virginia  Report  of 
1799,"  a  state  paper  which,  having  wrought  a  great  effect  upon  the  politi- 
cal parties  of  its  day,  is  still, — though  more  praised  than  read, — highly 
esteemed  as  a  commentary  on  the  Federal  Constitution.  The  other  papers 
which  go  along  with  the  "  Report,"  are  intended,  like  this  preface,  only  to 
illustrate  it. 

After  the  lapse  of  so  many  years,  the  reader,  it  is  hoped,  will  not  take 
it  amiss  that  his  memory  is  refreshed  as  to  some  of  the  incidents  of  the 
period  that  gave  birth  to  this  document ;  a  period  perhaps  the  most  critical 
in  our  national  annals. 

The  present  Federal  Constitution,  succeeding  to  the  "  Articles  of  don- 
federation,"  having  been  ratified  by  eleven  states,  commenced  its'  opera- 
tion, nominally ',  on  the  4th  of  March,  1789,  under  the  auspices  of  WASH- 
INGTON, as  the  first  President.  In  his  Cabinet,  and  in  the  first  Congress, 
were  organized  the  parties  afterwards  known  as  "  Federalists"  and  "  Re- 
publicans." The  former,  under  the  sagacious  lead  of  Alexander  Hamilton, 
the  Secretary  of  the  Treasury,  fearful  of  a  recurrence  of  that  anarchy 
which  had  overtaken  the  country  under  the  imbecile  government  of  the 
"  Confederation,"  were  inclined  to  a  vigorous  exercise  of  the  federal  power, 
and  consequently  adopted  a  liberal  construction  of  the  Federal  Constitution. 
The  Republicans,  on  the  other  side,  headed  by  Mr.  Jefferson,  were  appre- 
hensive of  a  gradual  absorption,  by  the  central  government,  of  the  powers 
reserved  to  the  states  and  to  the  people.  Consolidation  was  their  great 
terror,  as  the  absence  of  all  government  was  the  terror  of  their  opponents ; 
and  consolidation  they  viewed,  justly,  as  the  forerunner  not  of  monarchy 
only,  but  of  despotism. 

997904 


X  PREFACE. 

Mr.  Hamilton,  being  a  declared  admirer  of  the  English  Constitution  in 
the  abstract,  gave  occasion  to  many  of  the 'opposite  party  to  impute 
to  him,  and  to  his  political  associates,  sentiments  unfavourable  to  the 
existing  institutions  of  the  country ;  in  short,  a  proclivity  to  monarchy. 
This  suspicion,  undoubtedly  unjust  as  regards  the  great  mass  of  the  Fede- 
ralists, was  fortified  by  their  avowed  opinions  touching  the  necessity  of 
what,  in  the  phrase  of  the  time,  was  called  a  strong  government. 

The  occurrence  of  the  French  Revolution  affected  these  parties  with 
different  emotions.  The  Republicans  looked  on  in  trusting  faith  that  it 
would  result  in  giving  to  France  institutions  modelled  after  our  own,  cal- 
culated to  insure  rational  freedom,  but  affording  no  encouragement  to 
licentiousness.  The  Federalists  were  less  sanguine.  They  feared  that  the 
French  people  neither  appreciated  the  blessings  of  liberty  founded  on  law, 
nor  were  capable  of  attaining  them,  and  they  conceived  all  their  conclu- 
sions confirmed  by  the  succession  of  tragic  scenes  which  accompanied  the 
progress  of  the  Revolution.  Thenceforward  sympathy  with  France  con- 
stituted a  prominent  point  of  difference  between  their  adversaries  and 
themselves. 

In  1793,  upon  the  execution  of  Louis  XVI.,  a  war  broke  out  between 
France  and  England,  which,  as  it  was  characterized  by  unusual  animosity 
between  the  contending  parties,  led  to  an  emulous  violation  by  both  of 
the  rights  of  neutral  commerce.  From  these  outrages  no  country  suffered 
more  than  the  United  States,  the  citizens  of  which,  instead  of  uniting  to 
require  indemnity  from  both  belligerents,  allowed  their  partisan  feelings  to 
array  them  as  the  apologists,  or  the  denouncers,  of  one  or  the  other,  as 
previous  tendencies  disposed  them.  The  Republicans  favoured  France, 
influenced  as  well  by  a  natural  sympathy  for  a  great  people  struggling,  as 
they  supposed,  for  freedom,  as  by  gratitude  for  the  assistance  so  recently 
received  in  the  war  of  our  Revolution,  and  animated  by  a  hostility,  not 
yet  extinct,  towards  our  former  enemy,  Great  Britain.  The  Federalists 
leaned  towards  England  as  the  champion  of  conservatism,  and  the  bul- 
wark against  that  pernicious  license  everywhere  propagated  by  French 
writers  and  emissaries. 

The  Republicans  identified  France  with  liberty,  and  cherished  its  cause 
with  proportionate  ardour.  The  Federalists  saw  in  it  only  irreligion,  pri- 
vate profligacy,  bloody  excess,  and,  in  the  end,  the  despotism  of  the  sword, 
and  abhorred  it  as  a  combination  of  all  that  was  hateful  to  their  reason, 
and  their  habits. 

On  the  other  hand,  England  was  to  the  Federalists  the  embodiment  of 
a  government  at  once  vigorous  and  free ;  not  insensible  to  the  opinions  of 


PREFACE.  Xl 

its  people,  but  impassive  to  their  prejudices  and  passions  ,-  and  the  regard 
due  to  those  qualities,  was  extended  to  the  country.  To  the  Republicans, 
England  was  a  monarchy,  and  their  late  oppressor,  and  now  appeared  to 
be  a  reluctant  and  surly  friend,  in  each  and  all  of  which  characters,  it 
was  alike  odious. 

The  war  had  not  been  long  in  progress,  when  many  Americans,  stimu- 
lated by  French  agents,  and  the  thirst  of  gain,  and  relying  upon  the  pre- 
possessions of  their  countrymen,  hastened  to  fit  out  armed  vessels  in  several 
of  our  ports,  to  cruise  under  French  commissions,  against  the  enemies  of 
France.  England  remonstrated,  and  there  was  issued,  in  consequence, 
General  Washington's  famous  proclamation  of  neutrality,  which,  with  the 
instructions  founded  upon  it,  rigorously  interdicted  such  enterprises  for 
the  future.  This  led  to  a  correspondence  between  Mr.  Jefferson,  then 
Secretary  of  State,  and  Genet,  the  French  minister,  resident  here,  in 
which  the  latter,  confiding  in  the  supposed  popular  partiality  for  France, 
crowned  a  series  of  impertinences  by  threatening  to  appeal  from  the 
government  to  the  people  of  America,  and  was  in  consequence,  by  the 
request  of  the  President,  recalled. 

Genet's  recall, — his  successor  being  a  man  of  more  moderation, — had  the 
effect  to  restore  those  cordial  feelings  for  France  to  which  the  former's 
indefensible  conduct  had  given  a  s'hed^  Meanwhile  our  commerce  was 
suffering  much  from  the  depredations  of  both  belligerents.  In  1794,  Mr. 
Jay,  the  Chief  Justice  of  the  United  States,  having  been  despatched  as  a 
special  envoy  to  England,  to  adjust  the  numerous  differences  which  had 
been  accumulating  with  that  country  since  the  peace  of  1783,  the  jealousy 
of  France  blazed  fiercely  out ;  and  when,  the  next  year,  the  treaty  nego- 
tiated by  Mr.  Jay  was  ratified  by  our  government,  the  indignation  of  the 
Directory  knew  no  bounds.  Spoliations  of  our  commerce  were  committed 
with  as  little  reserve  as  if  actual  war  existed,  and  the  conduct  of  the  Frencji 
government  was  marked  by  every  circumstance  of  contumely. 

Jay's  treaty,  meanwhile,  was  received  in  America  with  a  severity  of 
reprehension  which  bespoke  the  decided  Anti-Anglican  dispositions  of  our 
people.  It  must  be  admitted,  indeed,  to  have  involved  a  painful  sacrifice 
of  the  rights  of  our  country,  in  more  than  one  particular.  It  had  the  effect, 
however,  to  postpone  a  war  with  England  until  we  were  better  able  to 
bear  it,  and, — our  Union  preserved, — we  shall  probably  never  again  be 
subjected  to  a  like  humiliation.  The  manifestations  of  popular  feeling  in- 
duced, in  the  French  Directory,  the  conceit  that  the  government  of  Ame- 
rica might  be  separated  from  its  citizens.  Acting  upon  this  delusion,  they 
took  leave  of  Mr.  Monroe,  then  our  representative  at  Paris,  with  warm 


Xll  .  PREFACE. 

professions  of  regard  for  the  people  of  America,  and  of  undisguised  hostility 
to  the  administration,  and  refused,  with  studied  indignity,  to  receive  Mr. 
Pinckney,  who  had  been  sent  out  as  Mr.  Monroe's  successor. 

Parties  in  the  United  States  were  thus  situated  when  General  Washington, 
at  the  end  of  his  second  term,  resigned  the  reins  of  power  to  Mr.  Adams, 
who  was  himself  a  Federalist,  and  chose  his  cabinet  from  those  of  kindred 
sentiments.  Very  soon  after  his  accession,  Mr.  Adams  made  an  effort  to 
compose  our  misunderstanding  with  France  by  sending  thither  a  solemn 
embassy,  consisting  of  Mr.  Charles  C.  Pinckney  of  South  Carolina,  Mr.  Mar- 
shall of  Virginia,  and  Mr.  Gerry  of  Massachusetts.  The  joint  appointment 
of  gentlemen  so  distinguished  ought  to  have  evinced  to  France  the  strong 
desire  of  our  government  to  conciliate  her.  They  were  treated,  however, 
with  an  insolence  inconceivable,  were  not  admitted  to  an  audience,  and 
were  subjected  to  the  mortification  of  being  approached  by  certain  agents 
of  Talleyrand,  the  minister  for  public  affairs,  with  proposals  as  degrading 
as  they  were  direct,  for  a  bribe.  The  proposition  was,  that  £50,000 
sterling  should  be  distributed  amongst  certain  members  of  the  Directory, 
as  the  necessary  price  of  entering  upon  the  negotiation.  The  envoys 
having  peremptorily  refused  to  buy,  in  any  way,  the  privilege  of  present- 
ing the  just  demands  of-  their  country,  Messrs.  Pinckney  and  Marshall 
were  dismissed ;  Mr.  Gerry,  who,  as  belonging  to  the  Republican  party, 
was  insultingly  supposed  to  be  more  pliable,  being  requested  to  remain. 

The  envoys  having  communicated  these  transactions  to  their  govern- 
ment, the  correspondence  was  laid  before  Congress,  and  printed,  the  names 
of  Talleyrand's  brokers  being  veiled  under  the  respective  letters  X.  Y.  Z. 
and  W.  The  publication,  like  an  electric  shock,  awakened  all  the  dor- 
mant fires  of  patriotism  in  America.  As  one  man  the  people  stood  for- 
ward prepared  to  vindicate  the  insulted  honour  and  violated  rights  of  their 
country.  The  President,  anticipating  the  national  spirit,  in  his  message 
of  21st  June,  1798,  communicating  the  return  of  Mr.  Marshall  to  the  United 
States,  peremptorily  declared  that  he  would  "  never  send  another  minister  to 
France  without  assurances  that  he  would  be  received,  respected,  and 
honoured,  as  the  representative  of  a  great,  free,  powerful,  and  independent 
nation." 

So  strong  was  the  general  irritation  under  what  was  called  "  the  X.  Y. 
Z.  excitement,"  that  party  lines  were  in  a  degree  obliterated,  and  the  ad- 
ministration of  Mr.  Adams  was,  for  a  brief  period,  lifted  to  a  great  height 
of  popularity,  whence,  however,  it  was  very  soon  precipitated  into  irre- 
trievable disgrace.  i 

The  Federalists,  elated  at  the  spring-tide  of  favour  setting  in  upon  the 


PREFACE.  Xlll 

administration,  resolved  to  avail  themselves  of  it  to  the  utmost.  With 
this  view  they  proceeded  vigorously  with  preparations  for  a  war  with 
France,  and  determined  to  take  decisive  steps  to  expel  from  the  country 
all  aliens  who  might  be  supposed  hostile  or  dangerous  to  its  institutions. 
Thus  they  hoped  to  keep  up  the  excitement  of  anger  against  France,  and 
of  jealousy"  against  her  apologists  amongst  our  own  people,  whilst  they 
got  rid  of  the  French  propagandists,  and  unquiet  English  and  Irish  agitators, 
who  were  employed  too  much  in  preaching  license,  under  the  name  of 
liberty.  The  Alien  Act  was  accordingly  passed  25th  June,  17g8,  being 
especially  aimed,  it  was  thought,  at  Volney,  Collot,  Priestley,  and  a  few 
others.  Then  they  essayed  to  curb  what  they  called  the  licentiousness 
of  the  press  by  the  Sedition  Act,  which  received  the  assent  of  the  Presi- 
dent on  the  14th  July,  1798. 

These  two  laws,  but  especially  the  last,  were  fatal  to  the  party  which 
originated  them.  The  Alien  Act  alone,  as  being  directed  against  com- 
paratively few  persons,  and  those  strangers,  might  not  have  been  so  ob- 
noxious, but  the  Sedition  Law,  trespassing,  as  it  seemed  to  do,  upon  the 
freedom  of  the  press,  so  cherished  by  the  Anglo-Saxon  race,  raised  a 
storm,  before  which  all  the  recent  popularity  of  Mr.  Adams's  administra- 
tion vanished  like  morning  mist. 

Suspicions  of  the  darkest  ultimate  designs  were  entertained  and  dissemi- 
nated. "  For  my  own  part,"  says  Mr.  Jefferson,  addressing  a  friend,  "  I 
consider  those  laws  as  merely  an  experiment  on  the  American  mind,  to 
see  how  it  will  bear  an  avowed  violation  of  the  Constitution.  If  this  goes 
down,  we  shall  immediately  see  attempted  another  act  of  Congress,  de- 
claring that  the  President  shall  continue  in  office  during  life,  reserving  to 
another  occasion  the  transfer  of  the  succession  to  his  heirs,  and  the  esta- 
blishment of  the  Senate  for  life!" 

To  these  suspicions  a  deeper  tinge  was  imparted  by  the  preparations 
for  the  impending  war  with  France.  These,  however  indispensable,  ex- 
posed the  administration  to  misconstruction,  and  to  complaints  both  loud 
and  deep.  An  additional  army,  first  of  10,000  and  afterwards  of  30,000 
men  was  authorized  to  be  raised  in  the  event  of  a  declaration  of  war,  or 
an  actual  invasion,  or  imminent  danger  thereof,  and  the  President  was 
besides,  authorized  to  accept  the  services  of  an  indefinite  number  of  volun- 
teers. A  navy  was  also  begun  on  a  liberal  scale.  To  meet  the  expense 
of  these  measures,  besides  duties  on  imports,  and  a  loan  of  $5,000,000,  a 
direct  tax  of  $2,000,000,  (whereof  the  quota  of  Virginia  was  $345,488  66,) 
was  laid  on  dwelling-houses,  lands,  and  slaves.  These  burdens  predispos- 


XIV  PREFACE. 

ing  the  people  to  murmur,  they  hearkened  readily  to  the  vehement  accu- 
sations with  which  the  press,  the  hustings,  and  even  conversation  teemed. 

The  Alien  and  Sedition  Laws,  the  army  and  navy  bills,  and  the  large 
sums  placed  within  reach  of  the  President,  were  represented  as  parts  of 
the  same  plan  to  perpetuate  and  enlarge  his  power. 

In  proportion  as  ideas  like  these  gained  ground,  the  Alien  and  Sedition 
Laws  became  more  odious.  The  zeal  of  the  opposite  party  rising  with 
the  prospect  of  success,  and  stimulated  by  a  sense  of  the  importance  of 
the  principles  supposed  to  be  invaded,  they  addressed  themselves,  with 
renewed  ardour,  to  the  task  of  overthrowing  the  administration.  Nor 
were  its  supporters  idle  or  indifferent.  The  New  England  and  the  Middle 
States  were  generally  favourable  to  the  party  in  power ;  the  Southern 
and  Western  States  were  for  the  most  part  Republican.  But  minorities 
imposing  in  numbers  and  in  character  existed  on  either  side.  Both  par- 
ties hastened  to  call  into  action  all  the  political  machinery  available  for 
them  respectively,  of  which  the  most  efficient  consisted  in  the  solemn  de- 
clarations of  the  several  state  legislatures  touching  the  obnoxious  laws. 

Important  as  the  crisis  really  was,  it  was  factitiously  exaggerated  by 
the  partisanship  on  both  sides.  The  advocates  of  administration,  in  order 
to  maintain  the  constitutionality  of  the  Sedition  Act,  amongst  other  argu- 
ments, insisted  that  the  offence  denounced  by  it  was,  an  offence  at  common 
law,  and  was  therefore  punishable  in  the  courts  of  the  United  States,  in- 
dependently of  the  statute.  The  statute,  it  was  said,  was  even  more 
favourable  to  the  accused  than  the  common  law.  The  assumption  in- 
volved in  this  argument,  that  the  common  law  constituted  part  of  the 
federal  jurisprudence,  created  more  alarm  than  the  main  topics  of  com- 
plaint, the  Alien  and  Sedition  Laws  themselves.  It  was  regarded  as  an 
accumulation,  at  one  stroke,  of  all  authority  in  the  hands  of  the- Federal 
Government,  there  being  no  subject,  legislative,  executive,  or  judicial, 
which  the  common  law  did  not  embrace;  and  it  was  anxiously  urged 
that  the  effect  would  be  an  annihilation  of  state  sovereignty,  and  the 
erection  of  a  government  consolidated,  and  therefore  despotic.  "  Other 
assumption^  of  ungiven  power,"  said  Mr.  Jefferson,  "  have  been  in  detail. 
The  bank  law,  the  treaty  doctrine,  the  sedition  act,  alien  act,  the  under- 
taking to  change  the  state  laws  of  evidence  in  the  state  courts,  by  certain 
parts  of  the  stamp  act,  &c.,  &c.,  have  been  solitary,  unconsequential, 
timid  things,  in  comparison  with  the  audacious,  bare-faced,  and  sweeping 
pretension  to  a  system  of  law  for  the  United  States,  without  the  adoption 
of  their  legislature,  and  so  infinitely  beyond  their  power  to  adopt." 


PREFACE.  XV 

The  legislatures  of  the  several  states  prepared  to  bear  their  parts  in  the 
drama.  That  of  Virginia,  which  assembled  in  December,  1798,  was 
looked  to  by  both  parties  with  peculiar  interest.  The  plan  of  opposition 
to  be  pursued  there  was  probably  arranged  by  Mr.  Jefferson  and  Mr. 
Madison,  though  neither  was  a  member.  The  plan  was  to  resolve  that 
the  Alien  and  Sedition  Laws  were  unconstitutional  and  merely  void,  (which 
latter  phrase,  however,  was  ultimately  struck  out  of  the  resolutions,  as 
actually  adopted,)  and  to  address  the  other  states,  to  obtain  similar  decla- 
rations. It  was  not  contemplated  to  commit  the  commonwealth  to  any 
foreshadowed  course  of  action,  but  to  reserve  the  power  to  shape  future 
measures  by  the  events  which  should  happen.  Mr.  Jefferson  drew  the 
resolutions  for  Kentucky,*'  which  was  ready  to  act  consentaneously  with 
Virginia,  (and  did,  in  fact,  act  before  her,)  and  they' were  proposed  in 
her  legislature  by  Mr.  Breckenridge.  The  Virginia  resolutions,!  sub- 
mitted and  ably  defended  by  Mr.  John  Taylor,  of  Caroline,  were  from 
the  pen  of  Mr.  Madison. 

The  Virginia  resolutions,  having  been  officially  communicated  to  the 
legislatures  of  all  the  other  states,  encountered  from  some  of  them  a  dis- 
approval so  decided  as  to  make  it  necessary  to  sustain  the  propriety  of 
them  by  argument.  Accordingly,  during  the  whole  summer  of  1199,  the 
state  was  agitated  with  preparations  for  the  approaching  conflict.  The 
Republicans  possessed  a  decided  majority  in  the  legislature,  and  amongst 
the  people,  but  the  minority,  besides  being  respectable  for  numbers,  com- 
prehended many  individuals  eminent  for  public  and  private  virtue,  for 
capacity,  and  for  services  rendered  their  country,  and  were  sustained  also 
by  the  august  name  of  WASHINGTON. 

The  General  Assembly,  which  convened  in  December,  1799,  con- 
tained an  unusual  weight  of  ability  and  experience.  Virginia  mustered 
for  the  occasion  her  strongest  men.  The  author  of  the  resolutions  was 
chosen  for  the  county  of  Orange,  and  against  him  was  marshalled  no  less 
a  champion  than  PATRICK  HENRY,  who  was  elected  from  the  county  of 
Charlotte,  but  died  before  taking  his  seat. 

To  that  General  Assembly  was  submitted  from  a  committee,  at  the 
head  of  which  was  Mr.  Madison,  that  dignified  and  lucid  report  vindica- 
tory of  the  resolutions  of  the  previous  year,  ever  since  known  in  Virginia,, 
as  "  Madison's  Report,"  and  out  of  it,  as  "the  Virginia  Report  of  1799." 
It  assisted  materially  in  perfecting  the  victory  already,  in  effect,  achieved 

*  See  them,  post,  p.  163.    The  authorship  of  these  resolutions  has   lately  been 
claimed  for  the  distinguished  gentleman  who  offered  them. 
t  Post,  p.  22. 


XVi  PREFACE. 

by  the  Republican  party.  In  the  ensuing  autumn,  or  rather  winter,  Mr. 
Jefferson  was  elected  President,  and  the  Alien  and  Sedition  Laws  having 
expired  by  their  own  limitation,  no  thought  was  entertained  of  renewing 
them,  and, their  policy  was  abandoned,  probably  for  ever. 

This  pamphlet,  as  remarked  in  the  beginning,  contains,  besides  the 
"  Report,"  certain  other  publications  calculated  to  illustrate  it.  The 
whole  is  arranged  in  the  following  order,  viz. : 

I.  The  Alien  and  Sedition  Acts,  17  to  21. 

II.  Resolutions  of  Virginia  of  21st  December,  1798,  with  the  debate 
thereon,  22  to  161. 

III.  Resolutions  of  Kentucky  of  10th  November,  1798,  162  to  167. 

IV.  Counter-resolutions  of  several  states  in  response  to  those  of  Vir- 
ginia, 168  to  177. 

V.  Report  of  1799,  preceded  by  an  analysis  thereof,  178  to  237. 

VI.  Instructions   to  Virginia  senators   of  January,  1800,  and  votes 
thereon,  238  to  248. 

VII.  Appendix:  containing 

1.  A  letter  from  Mr.  Madison  to  Mr.  Everett,  touching  the  con- 
struction of  the  first  resolution  of  1798,  249  to  256. 

2.  A  letter  from  the  same  to  Mr.  Ingersoll,  relative  to  the  Bank 
question,  257. 

3.  A  letter  from  the  same  to  the  same,  on  the  same  subject,  258 
to  260. 

In  conclusion,  it  is  proper  to  observe  that  this  edition  is  intended 
especially  for  the  use  of  students,  and  that  the  learned  rea'der  must  expect 
to  find  in  the  notes,  and  in  the  analysis  prefixed  to  the  report,  much  with 
which  he  could  dispense. 


THE  VIRGINIA  REPORT, 

ETC.  ETC. 

I.  THE  ALIEN  AND  SEDITION  ACTS. 

AN  ACT  CONCERNING  ALIENS. 
[Approved  June  25,  1798.] 

ABSTRACT. 

SECTION  I.  Confers  power  on  the  President  to  order  aliens  to  depart. 

1.  What  aliens. 

Such  as  the  President  shall  judge  dangerous  to  the  peace  and 
safety  of  the  United  States,  or  shall  have  reasonable  grounds  to 
suspect  of  treasonable  or  secret  machinations  against  the  govern- 
ment. 

2.  How  proceeded  against. 

By  the  President's  order  to  depart,  served  by  .the  marshal  or  other 
person.  But  the  President  may  grant  a  license  to  remain  on 
proof  by  the  alien,  that  he  is  not  dangerous ;  and  may  require 
bond  and  security  of  such  person. 

3.  Consequences  of  disobedience. 

Imprisonment,  on  conviction,  not  exceeding  three  years,  and  per- 
petual disability  to  become  a  citizen. 
SECTION  II.  Confers  on  the  President  power  to  remove  aliens. 

1.  What  aliens. 

Such  as  are  above  described,  who  are 

1.  In  prison,  in  pursuance  of  this  Act. 

2.  Dangerous,  and  proper  to  be  speedily  removed.     . 

2.  Consequences  of  returning  without  President's  permission. 

Imprisonment,  on  conviction,  as  long  as  the  President  thinks  the 

public  safety  requires  it. 

SECTION  III.  Requires  masters  of  ships  to  report  to  officers  of  customs,  all 
aliens  on  board. 

2 


18  ALIEN  AND  SEDITION  ACTS. 

SECTION  IV.  Gives  the  District  and  Circuit  Courts  of  the  United  States 
cognizance  of  all  offences  against  this  Act ;  and  requires 
marshals,  and  other  officers  of  the  United  States  to  exe- 
cute the  President's  orders  under  it. 

SECTION  V.  Allows  alien  to  remove  his  effects. 

SECTION  VI.  Continues  act  in  force  for  two  years. 

SECTION  1.  Be  it  enacted  by  the  Senate  and  House  of  Representatives 
of  the  United  States  of  America,  in  Congress  assembled,  That  it  shall  be 
lawful  for  the  President  of  the  United  States,  at  any  time  during  the  con- 
tmuanee'qf  I  his  act,  to  order  all  such  aliens  as  he  shall  judge  dangerous 
to  the  peace  and  safety  of  the  United  States,  or  shall  have  reasonable 
gro'ufids.  to  .siispect- are  concerned  in  any  treasonable  or  secret  machina- 
tions against  the  government  thereof,  to  depart  out  of  the  territory  of  the 
United  States  within  such  time  as  shall  be  expressed  in  such  order ;  which 
order  shall  be  served  on  such  alien,  by  delivering  him  a  copy  thereof,  or 
leaving  the  same  at  his  usual  abode,  and  returned  to  the  office  of  the 
Secretary  of  State,  by  the  marshal,  or  other  person,  to  whom  the  same 
shall  be  directed.  And  in  case  any  alien,  so  ordered  to  depart,  shall  be 
found  at  large  within  the  United  States  after  the  time  limited  in  such  order 
for  his"  departure,  and  not  having  obtained  a  license  from  the  President  to 
reside  therein,  or  having  obtained  such  license,  shall  not  have  conformed 
thereto,  every  such  alien  shall,  on  conviction  thereof,  be  imprisoned  for  a 
term  not  exceeding  three  years,  and  shall  never  after  be  admitted  to  be- 
come a  citizen  of  the  United  States  :  Provided  always,  and  be  it  further 
enacted,  That  if  any  alien  so  ordered  to  depart  shall  prove,  to  the  satisfac- 
tion of  the  President,  by  evidence,  to  be  taken  before  such  person  or  per- 
sons as  the  President  shall  direct,  who  are  for  that  purpose  hereby  autho- 
rized to  administer  oaths,  that  no  injury  or  danger  to  the  United  States  will 
arise  from  suffering  such  alien  to  reside  therein,  the  President  may  grant 
a  license  to  such  alien  to  remain  within  the  United  States  for  such  time  as 
he  shall  judge  proper,  and  at  such  place  as  he  may  designate.  And  the 
President  may  also  require  of  such  alien  to  enter  into  a  bond  to_the  United 
States,  in  such  penal  sum  as  he  may  direct,  with  one  or  more  sufficient 
sureties,  to  the  satisfaction  of  the  person  authorized  by  the  President  to 
take  the  same,  conditioned  for  the  good  behaviour  of  such  alien  during  his 
residence  in  the  United  States,  and  not  violating  his  license,  which  license 
the  President  may  revoke  whenever  he  shall  think  proper. 

SECT.  2.  And.be  it  further  enacted,  That  it  shall  be  lawful  for  the 
President  of  the  United  States,  whenever  he  may  deem  it  necessary  for 
the  public  safety,  to  order  to  be  removed  out  of  the  territory  thereof  any 
alien  who  may  or  shall  be  in  prison  in  pursuance  of  this  act;  and  to 
cause  to  be  arrested  and  sent  out  of  the  United  States  such  of  those  aliens 
as  shall  have  been  ordered  to  depart  therefrom,  and  shall  not  have  obtained 
a  license  as  aforesaid,  in  all  cases  where,  in  the  opinion  of  the  President, 
the  public  safety  requires  a  speedy  removal.  And  if  any  alien  so  removed 
or  sent  out  of  the  United  States  by  the  President  shall  voluntarily  .return 
thereto,  unless  by  permission  of  the  President  of  the  United  States,  such 
alien,  on  conviction  thereof,  shall  be  imprisoned  so  long  as,  in  the  opinion 
of  the  President,  the  public  safety  may  require. 


ALIEN  AND  SEDITION  ACTS.  19 

SECT.  3.  And  be  it  further  enacted,  That  every  master  or  commander 
of  any  ship  or  vessel  which  shall  come  into  any  port  of  the  United  States 
after  the  first  day  of  July  next  shall,  immediately  on  -his  arrival,  make  re- 
port in  writing  to  the  collector  or  other  chief  officer  of  the  customs  of  such 
port,  of  all  aliens,  if  any  on  board  his  vessel,  specifying  their  names,  age, 
the  place  of  nativity,  the  country  from  which  they  shall  have  come,  the 
nation  to  which  they  belong  and  owe  allegiance,  their  occupation,  and  a 
description  of  their  persons,  as  far  as  he  shall  be  informed  thereof,  and  on 
failure,  every  such  master  and  commander  shall  forfeit  and  pay  three 
hundred  dollars,  for  the  payment  whereof,  on  default  of  such  master  or 
commander,  such  vessel  shall  also  be  holden,  and  may  by  such  collector 
or  other  officer  of  the  customs  be  detained.  And  it  shall  be  the  duty  of 
such  collector  or  other  officer  of  the  customs,  forthwith  to  transmit  to  the 
office  of  the  Department  of  State  true  copies  of  all  such  returns. 

SECT.  4.  And  be  it  further  enacted,  That  the  Circuit  and  District 
Courts  of  the  United  States  shall  respectively  have  cognizance  of  all 
crimes  and  offences  against  this  act.  And  all  marshals  and  other  officers 
of  the  United  States  are  required  to  execute  all  precepts  and  orders  of 
the  President  of  the  United  States,  issued  in  pursuance  or  by  virtue  of 
this  act. 

SECT.  5.  And  be  it  further  enacted,  That  it  shall  be  lawful  for  any 
alien  who  may  be  ordered  to  be  removed  from  the  United  States,  by  vir- 
tue of  this  act,  to  take  with  him  such  part  of  his  goods,  chattels,  or  other 
property,  as  he  may  find  convenient;  and  all  property  left  in  the  United 
States,  by  any  alien  who  may  be  removed  as  aforesaid,  shall  be  and  re- 
main subject  to  his  order  and  disposal,  in  the  same  manner  as  if  this  act 
had  not  been  passed. 

SECT.  6.  And  be  it  further  enacted,  That  this  act  shall  continue  and 
be  in  force  for  and  during  the  term  of  two  years  from  the  passing  thereof. 


SEDITION  ACT. 

An  act  in  addition  to  the  act  intituled,  "  An  act  for  the  punishment  of 
certain  crimes  against  the  United  States" 

[Approved  July  14,  1798.] 
ABSTRACT. 

SECTION  I.  Punishes  combinations  against  United  States  government. 
1.  Definition  of  offence: 

Unlawfully  to  combine  or  conspire  together  to  oppose  any  mea- 
sure of  the  government  of  the  United  States,  &c. 
This  section  was  not  complained  of. 


20  ALIEN  AND  SEDITION  ACTS. 

I 

2.  Grade  of  offence : 

A  high  misdemeanour. 

3.  Punishment: 

Fine  not  exceeding  85000,  and  imprisonment  six  months  to  five 

years. 
SECTION  IL,  Punishes  seditious  writings. 

1.  Definition  of  offence : 

To  write,  print,  utter  or  publish,  or  cause  it  to  be  done,  or  assist 
in  it,  any  false,  scandalous,  and  malicious  writing  against  the 
government  of  the  United  States,  or  either  House  of  Congress, 
or  the  President,  with  intent  to  defame,  or  bring  either  into  con- 
tempt or  disrepute,  or  to  excite  against  either  the  hatred  of  the 
people  of  the  United  States,  or  to  stir  up  sedition,  or  to  excite 
unlawful  combinations  against  the  government,  or  to  resist  it,  or 
to  aid  or  encourage  hostile  designs  of  foreign  nations. 

2.  Grade  of  offence : 

A.  misdemeanour. 

3.  Punishment: 

Fine  not  exceeding  $2000,  and  imprisonment  not  exceeding  two 

years. 
SECTION  III.  Allows  accused  to  give  in  evidence  the  truth  of  the  matter 

charged  as  libellous. 
SECTION  IV.  Continues  the  Act  to  3d  March,  1801. 

SECTION  1.  Be  it  enacted  by  the  Senate  and  House  of  Representatives 
of  the  United  States  of  America,  in  Congress  'assembled.  That  if  any  per- 
sons shall  unlawfully  combine  or  conspire  together,  with  intent  to  oppose 
any  measure  or  measures  of  the  government  of  the  United  States,  which 
are  or  shall  be  directed  by  proper  authority,  or  to  impede  the  operation  of 
any  law  of  the  United  States,  or  to  intimidate  or  prevent  any  person  hold- 
ing a  place  or  office  in  or  under  the  government  of  the  United  States, 
from  undertaking,  performing,  or  executing  his  trust  or  duty  :  and  if  any 
person  or  persons,  with  intent  as  aforesaid,  shall  counsel,  advise,  or  at- 
tempt to  procure  any  insurrection,  riot,  unlawful  assembly,  or  combina- 
tion, whether  such  conspiracy,  threatening,  counsel,  advice,  or  attempt 
shall  have  the  proposed  effect  or  not,  he  or  they  shall  be  deemed  guilty  of 
a  high  misdemeanour,  and  on  conviction  before  any  court  of  the  United 
States  having  jurisdiction  thereof,  shall  be  punished  by  a  fine  not  exceed- 
ing five  thousand  dollars,  and  by  imprisonment  during  a  term  of  not  less 
than  six  months,  nor  exceeding  five  years ;  and  further,  at  the  discre- 
tion of  the  court,  may  be  holden  to  find  sureties  for  his  good  behaviour, 
in  such  sum,  and  for  such  time,  as  the  said  court  may  direct.  - 

SECT.  2.  And  be  it  further  enacted,  That  if  any  person  shall  write, 
print,  utter,  or  publish,  or  shall  cause  or  procure  to  be  written,  printed, 
uttered,  or  published,  or  shall  knowingly  and  willingly  assist  or  aid  in 
writing,  printing,  uttering,  or  publishing  any  false,  scandalous  and  mali- 
cious writing  or  writings  against  the  government  of  the  United  States,  or 
either  House  of  the  Congress  of  the  United  States,  or  the  President  of  the 
United  States,  with  intent  to  defame  the  said  government,  or  either  House 


ALIEN  AND  SEDITION  ACTS.  21 

of  the  said  Congress,  or  the  said  President,  or  to  bring  them,  or  either  of 
them,  into  contempt  or  disrepute ;  or  to  excite  against  them,  or  either  or 
any  of  them,  the  hatred  of  the  good  people  of  the  United  States,  or  to  stir 
up  sedition  within  the  United  States ;  or  to  excite  any  unlawful  combina- 
tions therein,  for  opposing  or  resisting  any  law  of  the  United  States,  or 
any  act  of  the  President  of  the  United  States,  done  in  pursuance  of  any 
such  law,  or  of  the  powers  in  him  vested  by  the  Constitution  of  the  United 
States ;  or  to  resist,  oppose,  or  defeat  any  such  law  or  act ;  or  to  aid,  en- 
courage or  abet  any  hostile  designs  of  any  foreign  nation  against  the 
United  States,  their  people  or  government,  then  such  person,  being  thereof 
convicted  before  any  court  of  the  United  States  having  jurisdiction  thereof, 
shall  be  punished  by  a  fine  not  exceeding  two  thousand  dollars,  and  by 
imprisonment  not  exceeding  two  years. 

SECT.  3.  And  be  it  further  enacted  and  declared.  That  if  any  person 
shall  be  prosecuted  under  this  act  for  the  writing  or  publishing  any  libel 
aforesaid,  it  shall  be  lawful  for  the  defendant,  upon  the  trial  of  the  cause, 
to  give  in  evidence  in  his  defence,  the  truth  of  the  matter  contained  in  the 
publication  charged  as  a  libel.  And  the  jury  who  shall  try  the  cause  shall 
have  a  right  to  determine  the  law  and  the  fact,  under  the  direction  of  the 
court,  as  in  other  cases. 

SECT.  4.  And  be  it  further  enacted,  That  this  act  shall  continue  and 
be  in  force  until  the  third  day  of  March,  one  thousand  eight  hundred  and 
one,  and  no  longer:  Provided,  That  the  expiration  of  the  act  shall  not 
prevent-or  defeat  a  prosecution  and  punishment  of  any  offence'against  the 
law,  during  the  time  it  shall  be  in  force. 


II.   RESOLUTIONS  OF   VIRGINIA 

OF  DECEMBER  21,  1798, 
AND   DEBATE   AND   VOTE  THEREON, 


RESOLUTIONS  AS  ADOPTED  BY  BOTH  HOUSES  OF 
ASSEMBLY. 

1.  Resolved,  That  the  General  Assembly  of  Virginia  doth  unequivocally 
express  a  firm  resolution  to  maintain  and  defend  the  Constitution  of  the 
United  States,  and  the  Constitution  of  this  State,  against  every  aggression, 
either  foreign  or  domestic,  and  that  it  will  support  the  government  of 
the  United  States  in  all  measures  warranted  by  the  former. 

2.  That*  this  Assembly  most  solemnly  declares  a  warm  attachment  to 
the  union  of  the  States,  to  maintain  which,  it  pledges  all  its  powers ;  and 
that  for  this  end  it  is  its  duty  to  watch  over  and  oppose  every  infraction 
of  those  principles,  which  constitute  the  only  basis  of  that  union,  because 
a  faithful  observance  of  them  can  alone  secure  its  existence,  and  the  pub- 
lic happiness. 

3.  That  this  Assembly  doth  explicitly  and  peremptorily  declare  that  it 
views  the  powers  of  the  Federal  Government  as  resulting  from  the  compact, 
to  which  the  States  are  parties,  as  limited  by  the  plain  sense  and  intention  of 
the  instrument  constituting  that  compact;  as  no  further  valid  than  they  are 
authorized  by  the  grants  enumerated  in  that  compact  5  and  that  in  case  of 
a  deliberate,  palpable,  and  dangerous  exercise  of  other  powers  not  granted 
by  the  said  compact,  the  States,  who  are  the  parties  thereto,  have  the  right, 
and  are  in  duty  bound,  to  interpose  for  arresting  the  progress  of  the  evil, 
and  for  maintaining  within  their  respective  limits,  the  authorities,  rights, 
and  liberties  appertaining  to  them. 

4.  That  the  General  Assembly  doth  also  express  its  deep  regret  that  a 
spirit  has  in  sundry  instances  been  manifested  by  the  Federal  Government, 
to  enlarge  its  powers  by  forced  constructions  of  the  constitutional  charter 
which  defines  them;  and  that  indications  have  appeared  of  a  design  to 
expound  certain  general  phrases  (which,  having  been  copied  from  the  very 
limited  grant  of  powers  in  the  former  articles  of  confederation,  were  the 
less  liable  to  be  misconstrued),  so  as  to  destroy  the  meaning  and  effect  of 
the  particular  enumeration,  which  necessarily  explains  and  limits  the  gene- 
ral phrases,  and  so  as  to  consolidate  the  States  by  degrees  into  one  sove- 
reignty, the  obvious  tendency  and  inevitable  result  of  which  would  be  to 


DEBATE  ON  VIRGINIA  RESOLUTIONS.  23 

transform  the  present  republican  system  of  the  United  States  into  an  ab- 
solute, or  at  best,  a  mixed  monarchy. 

5.  That  the  General  Assembly  doth  particularly  protest  against  the  pal- 
pable and  alarming  infractions  of  the  Constitution,  in  the  two  late  cases 
of  the  "  alien  and  sedition  acts,"  passed  at  the  last  session  of  Congress, 
the  first  of  which  exercises  a  power  nowhere  delegated  to  the  Federal  Go- 
vernment ;  and  which  by  uniting  legislative  and  judicial  powers  to  those 
of  executive,  subverts  the  general  principles  of  free  government,  as  well 
as  the  particular  organization  and  positive  provisions  of  the1  federal  Consti- 
tution ;  and  the  other  of  which  acts  exercises  in  like  manner  a  power  not 
delegated  by  the  Constitution,  but  on  the  contrary  expressly  and  positively 
forbidden  by  one  of  the  amendments  thereto;  a  power  which  more  than 
any  other  ought  to  produce  universal  alarm,  because  it  is  levelled  against 
that  right  of  freely  examining  public  characters  and  measures,  and  of  free 
communication  among  the  people  thereon,  which  has  ever  been  justly 
deemed  the  only  effectual  guardian  of  every  other  right. 

6.  That  this  State  having  by  its  convention  which  ratified  'the  federal 
Constitution,  expressly  declared,  "that  among  other  essential  rights,  the 
liberty  of  conscience  and  of  the  press  cannot  be  cancelled,  abridged,  re- 
strained, or  modified  by  any  authority  of  the  United  States,"  and  from  its 
extreme  anxiety  to  guard  these  rights  from  every  possible  attack  of  sophis- 
try or,  ambition,  having  with  other  States  recommended  an  amendment  for 
that  purpose,  which  amendment  was  in  due  time  annexed  to  the  Constitu- 
tion, it  would  mark  a  reproachful  inconsistency  and  criminal  degeneracy, 
if  an  indifference  were  now  shown  to  the  most  palpable  violation  of  one  of 
the  rights  thus  declared  and  secured,  and  to  the  establishment  of  a  prece- 
dent which  may  be  fatal  to  the  other. 

7.  That  the  good  people  of  this  commonwealth  having  ever  feltvand 
continuing  to  feel  the  most  sincere  affection  to  their  brethren  of  the  other 
States,  the  truest  anxiety  for  establishing  and  perpetuating  the  union  of  all, 
and  the  most  scrupulous  fidelity  to  that  (Constitution  which  is  the  pledge  of 
mutual  friendship,  and  the  instrument  of  mutual  happiness,  the  General 
Assembly  doth  solemnly  appeal  to  the  like  dispositions  of  the  other  States, 
in  confidence  that  they  will  concur  with  this  commonwealth  in  declaring, 
as  it  does  hereby  declare,  that  the  acts  aforesaid  are  unconstitutional,  and 
that  the  necessary  and  proper  measure  will  be  taken  by  each,  for  co-ope- 
rating with  this  State  in  maintaining  unimpaired  the  authorities,  rights, 
and  liberties  reserved  to  the  States  respectively,  or  to  the  people. 

8.  That  the  Governor  be  desired  to  transmit  a  copy  of  the  foregoing 
resolutions  to  the  executive  authority  of  each  of  the  other  States,  with  a 
request  that  the  same  may  be  communicated  to  the  legislature  thereof. 
And  that  a  copy  be  furnished  to  each  of  the  senators  and  representatives 
representing  this  state  in  the  Congress  of  the  United  States. 

(gr  The  original  resolutions  offered  by  Mr.  John  Taylor  to  the  House 
of  Delegates  may  be  seen,  post,  p.  148. 


24  DEBATE  ON  VIRGINIA  RESOLUTIONS. 

DEBATE  IN  THE  HOUSE  OF  DELEGATES  ON  THE 
FOREGOING  RESOLUTIONS. 

Thursday,  December  13,  1798. 

The  House  resolved  itself  into  a  committee  of  the  whole  House,  on  the 
state  of  the  commonwealth,  Mr.  Brackenridge  in'the  chair;  when  the  reso- 
lutions presented  to  the  House  by  Mr.  John  Taylor,  and  referred  to  the  com- 
mittee, being  taken  up  for  its  consideration — 

Mr.  JOHN  TAYLOR  began,  by  expressing  great  regret  at  the  occasion 
which  brought  him  forward.  He  conceived  it  to  be  an  awful  one.  That 
liberty  was  in  danger,  and  as  that  rested  on  the  foundation  of  responsibility, 
every  effort  should  be  made  to  repel  attempts  to  subvert  it.  He  could  as- 
sure them,  that  his  feeble  efforts  should  be  used  for  that  purpose.  He  said 
that  two  subjects  were  contemplated  by  the  resolutions  before  them,  to 
which  he  should  chiefly  confine  his  observations.  He^should  consider  the^ 
,  '  constitutionality  of  the  laws  referred  to  in  the  resolutions,  and  their  cor- 
respondence with  human  rights,  natural  and  civil.  He  compared  the  ex 
ecutive  of  Great  Britain  with  the  (Jongress  of  the  United  States.  The 
prerogatives  of  the  first  were  limited  and  defined  by  the  constitution  of 
England,  as  were  the  powers  of  the  latter  by  the  Constitution  of  the  United 
States ;  and  if  the  king  at  any  time  overleaped  his  boundaries,  it  was 
always  certainly  opposed,  and  met  with  correction.  He  stated  the  case  of 
ship-money  imposed  by  Charles  I.  What  was  the  consequence  of  that 
•  measure?  It  was  opposed.  He  applied  that  case  to  the  Congress  of  the 
United  States.  The  powers  of  Congress,  by  the  Constitution,  were  defined, 
as  clearly  as  were  those  prerogatives.  That,  in  Great  Britain,  where  the 
prerogatives  were  limited,  wherever  the  executive  overleaped  their  bounds, 
other  organized  bodies  would  always  control  and  check  it.  So,  if  Con- 
gress overleaped  their  bounds,  some  organized  body  should  certainly  op- 
pose it.  Concluding  the  general  government  to  be  limited  in  its  powers, 
he  proceeded  to  inquire  if  Congress,  in  passing  the  alien  and  sedition  laws. 
had  overleaped  its  bounds.  He  mentioned  a  law,  which  Congress  had 
passed  at  the  same  session,  respecting  alien  enemies,  as  it  had  been  sug- 
gested that  the  one  particularly  called  the  alien  law  was  justifiable  on  ac- 
count of  danger  to  be  apprehended  from  foreigners.  This  alien  enemy 
law  passed  by  Congress,  as  well  as  a  law  of  Virginia,  upon  that  subject, 
were  made  in  favour  of  aliens.  They  were  necessary,  and  found  to  be 
the  usage  of  all  nations.  A  contrary  usage  would  be  cruel  and  inhuman. 
Such  laws  as  these  were  attended  with  mutual  advantages  to  the  nations 
at  war.  They  constituted  a  mutual  assurance  that  the  persons  and  pro- 
perty of  its  own  citizens  would  be  safe  in  the  country  of  the  other.  This 
i  was  not  the  object  of  the  law  in  contemplation.  The  other  laws  were  suf- 
ficient for  every  purpose.  That  aliens,  when  arrested  and  made  prisoners, 
were  not  dangerous.  He  said  he  would  ask  the  question  whether  alien 
friends  possessed  any  rights.  If  so,  they  might  be  secured  by  the  Consti- 
tution. Then,  if  they  were  infringed,  the  Constitution  was  broken.  If 
Congress  could  infringe  the  rights  of  those  people,  they  might  infringe  the 


DEBATE  ON  VIRGINIA.  RESOLUTIONS.  25 

rights  of  others.  One  usurpation  begat  another.  We  ourselves  might  as 
well  be  the  victims  as  others.  He  said,  that  alien  friends,  by  the  common 
law,  had  the  rights  of  life,  liberty,  and  property;  and  that  these  common 
law  rights  were  secured  by  the  Constitution ;  to  prove  which,  he  quoted 
that  clause  of  the  Constitution  by  which  those  rights  are  secured,  which 
Constitution  literally  reached  aliens,  by  using  in  all  places  the  term  "per- 
sons," not  "  natives."  He  then  put  the  case  of  our  population  being  in- 
creased by  a  considerable  emigration  of  foreigners  to  this  country,  who 
might  be  disposed  to  retain  their  foreign  citizenship  :  we  should  then  have 
amongst  us  a  body  of  men,  of  whom  the  President  would  be  the  despot : 
they  would  be  entirely  in  his  power.  He  further  observed  that,  suppose 
government  (never  an  enemy  to  power)  should  strengthen  its  hands  by 
corruption,  by  patronage,  by  standing  armies,  by  a  system  of  fears,  (he 
would  not  say  that  our  government  had  done  so,  but  in  case  a  government 
should  do  so,)  that  in  such  case,  this  body  of  emigrants,  thus  dependent  upon 
government,  would  be  a  proper  instrument  in  the  hands  of  the  executive, 
to  effect  its  purposes  :  that  executive  power  was  the  greatest  enemy  which 
republican  principles  had.  He  asked,  if  any  one  would  then  assert  that 
to  strengthen  executive  power  in  this  way,  wholly  unforeseen  by  those 
who  formed  the  Constitution,  so  as  to  extend  beyond  their  intention,  could 
be  agreeable  to  the  Constitution  :  that  republican  principles  were  the  great 
end  of  the  Constitution.  Then,  if  he  had  proved  this  law  inimical  to  those 
principles,  he  said  that  he  had  attained  the  great  end  at  which  he  aimed. 

He  next  observed,  that  the  Constitution  cautiously  attempted  to  distribute 
its  powers.  It  was  nothing  more  than  a  deed  of  trust  made  by  the  people 
to  the  government.  The  government,  then,  had  no  right  to  outstrip 
its  powers.  Were  they  not  defined  ?  Had  the  Constitution  given  any 
power  to  deprive  any  person  of  trial  by  jury?  That  if  once  we  were  to 
permit  executive  power  to  overleap  its  limits,  where  was  it  to  stop?  And. 
if  the  executive  branch  exercised  powers  not  bestowed,  it  overleaped  the 
Constitution.  He  asked  if  we  had  arrived  to  that  situation,  that  the  powers 
which  the  people  possessed  were  to  be  surrendered.  Were  we  approach- 
ing the  system  kof  Divine  right.  He  proceeded  to  construe  the  alien  law, 
and  said  that  the  precedent  established  by  it  was  dangerous,  both  as  it  af- 
fected individuals,  and  as  it  affected  states.  That  a  power  inclined  to  usur- 
pation, to  the  injury  of  aliens,  would  be  inclined  to  usurp,  in  the  construc- 
tion of  the  Constitution,  to  the  injury  of  states ;  and  that  the  precedent  in 
the  one  case,  would  soon  ripen  into  a  law,  for  justifying  the  other. 

He  next  read  the  sedition  law,  and  proceeded  to  comment  upon  the 
words  of  it,  especially  the  words  counsel  or  advise.  He  asked  how  he 
could  counsel  or  advise  another,  without  speaking  to  him ;  consequently 
these  words  extended  to  words  spoken.  He  put  the  case  of  his  counselling 
his  neighbour  to  withstand  the  two  laws  of  Congress  before  mentioned. 
That,  by  the  construction  of  the  last-mentioned  law,  words  were  reached, 
and  duties  prevented :  so  that,  if  he  should  advise  his  neighbour  in  regard 
to  those  laws,  ihe  latter  one  enacted  a  punishment.  He  then  asked,  what 
was  the  case  of  a  representative  in  State  Legislatures.  He  had  taken  an 
oath  to  oppose  unconstitutional  laws.  What  was  he  to  do?  On  one  hand 
was  perjury,  on  the  other  a  prison.  Suppose  a  law  were  to  infringe  the 


26  DEBATE  ON  VIRGINIA   RESOLUTIONS. 

guarantee  made  by  the  Constitution,  of  a  republican  form  of  government. 
What  was  a  representative  to  do  ?  Was  he  not  to  withstand  it  ?  If  such 
law  should  tend  to  destroy  that  guarantee,  were  we  to  wait  until  the  ene- 
my's detachments  closed  us  in  on  every  side  1  This  sedition  law  said  yes. 
In  the  construction  of  this  law  we  were  placed  in  the  hands  of  lawyers. 
The  judge  would  construe  the  law.  There  were  two  kinds  of  construc- 
tion, a  strict  construction,  and  a  liberal  construction.  The  judge  might 
put  upon  it  a  liberal  construction.  He  stated  an  historical  fact.  That 
sedition  was  forbidden  by  the  common  law.  That  the  law  of  England 
respecting  treason,  went  no  farther  in  describing  that  offence,  than  our 
law  does  in  describing  sedition.  He  then  cited  the  case  of  Algernon 
Sidney,  That  Algernon  Sidney  wrote  a  book  in  answer  to  Filmer,  to 
prove  "that  the  authority  of  kings  was  not  of  divine  original  (a  thing  in 
those  days  deemed  necessary  to  be  proved).  He  wished  a  necessity  might 
never  appear  for  a  new  edition  of  this  book.  For  this  he  was  prosecuted 
and  tried,  condemned  and  executed.  And  this  was  a  liberal  construction 
of  the  law.  He  thought  that  this  case  might  well  be  applied  in  an  argu- 
ment on  the  subject  of  this  law  of  ours.  However,  the  law  was  said  to  be 
harmless.  That  to  bring  themselves  within  it,  men  must  unlawfully  com- 
bine, they  must  conspire,  they  must  lie,  for  that  they  might  still  tell  truth 
without  clanger.  But  this  could  never  satisfy  him  that  it  was  not  danger- 
ous, when  he  recollected  that  the  best  patriots  had  been  sacrificed  by  se- 
dition laws,  with  the  help  of  construction. 

He  then  said  that  another  distinction  had  been  set  up,  that  this  law  was 
not  to  restrain  the  freedom,  but  the  licentiousness  of  speech.  This,  he 
observed,  was  an  epithet  which  might  be  applied  to  any  attempt  to  restrain 
usurpation.  Men  find  no  difficulty  in  pronouncing  opinions  to  be  both 
false  and  licentious,  which  differ  from  their  own.  That  this  same  distinc- 
tion (if  it  was  just)  would  empower  Congress  to  regulate  religion,  the  free- 
dom of  which  is  secured  by  the  same  article  which  secures  the  freedom  of 
speech.  They  might  in  the  end  be  induced  to  regulate  the  mode  of  peti- 
tioning, that  it  might  be  performed  orderly,  and  not  licentiously,  as  it  is  in 
some  countries,  by  crawling  on  the  belly  towards  a  throne,  and  licking  the 
dust.  He  then  observed,  that  a  power  to  restrain  treason,  was  more  ne- 
cessary in  a  government,  than  to  regulate  sedition :  that  our  Constitution 
had  yet  limited  the  power  over  treason  to  a  few  cases,  which  he  stated. 
However,  Congress  might  still  regulate  the  punishment  in  case  of  treason  ; 
and  it  was  possible,  that  they  might  establish  in  such  case  a  punishment 
short  of  death ;  a  punishment  even  inferior  to  that  for  sedition.  What  then 
would  result?  Treason  was  the  genus;  sedition  a  species.  If  the  first 
were  limited,  and  the  second  not,  what  security  had  we  1  He  then  read 
the  third  article  of  the  amendments  to  the  Constitution,  concerning  free- 
dom of  speech,  &c.,  and  asked  in  what  sense  this  clause  was  understood 
at  the  time  of  adoption  ?  Could  it  then  have  been  contemplated  by  any 
one,  that  such  a  law  as  this  would  ever  have  been  passed  ?  The  adoption 
of  the  Constitution  by  this  state  was  accompanied  by  a  condition  contain- 
ing a  reservation  of  these  very  rights :  so  that  they  must  have  been  un- 
derstood in  a  very  different  sense  then,  than  when  these  laws  of  Congress 
passed.  He  read  the  ratification  of  the  Constitution  by  the  convention  of 


DEBATE  ON  VIRGINIA  RESOLUTIONS,  27 

this  state,  and  said  that  the  same  ought  to  be  looked  upon  as  a  contem- 
poraneous exposition  of  the  part  of  the  Constitution  referred  to.  He  then 
asked,  if  the  sedition  law  did  in  no  respect  cancel,  restrain,  or  infringe  the 
liberty  of  the  press  !  And  concluded  his  observations  upon  the  first  of  the 
two  subjects,  to  which  he  had  before  mentioned  he  should  confine  them, 
by  saying  that,  if  he  had  proved  the  laws  spoken  of  to  be  unconstitutional, 
the  objection  to  them  on  that  ground  was  strong ;  and  by  asking  further, 
could  they  then  be  justified  upon  the  ground  of  necessity,  or  that  they 
were  harmless? 

He  began  his  observations  upon  the  second  subject,  by  asking  if  those 
laws  were  correspondent  with  human  rights  1  Those  rights,  he  said,  were, 
freedom  of  speech,  freedom  of  person,  a  right  to  justice,  and  to  a  fair  trial. 
If  an  alien  possessed  those  rights,  he  asked,  could  he  avail  himself  of 
them  under  the  present  law  ?  Could  a  citizen,  under  the  sedition  law,  ex- 
ercise the  freedom  of  speech,  or  of  religion,  which  last,  a  few  days  before, 
he  had  heard  called  a  social  right?  It  was  not  so.  It  was  either  a  na- 
tural duty,-  or  a  natural  right.  Was  it  possible  that  at  this  day,  religious 
worship  could  be  restrained  by  law  ?  The  right  of  opinion,  he  said,  should 
be  held  sacred.  It  ought  never  to  be  given  up  in  any  one  instance.  Re- 
ligion was  only  a  branch  of  opinion.  With  what  propriety  could  that  range 
of  thought,  bestowed  by  the  Creator  upon  the  human  mind,  be  controlled 
by  law.  He  deemed  it  a  sacrilege  for  government  to  undertake  to  regu- 
late the  mind  of  man.  It  was  a  subject  by  no  means  within  its  powers. 
What  would  be  the  consequence  of  such  a  measure?  Universal  ignorance 
amongst  the  people.  He  then  asked,  if  ignorance  was  a  desirable  thing? 
And  were  the  free  exercise  of  the  faculties  of  the  human  mind,  to  be  once 
restrained  and  shut  up,  he  wou]^  ask  them,  then,  what  was  man  ?  He  was 
therefore  opposed  to  those  laws,  as  being  destructive  of  the  most  essential 
human  rights.  He  again  asked,  if  such  laws  were  ever  contemplated  at 
the  time  of  the  adoption  of  the  Constitution,  and  what  would  be  the  con- 
sequence of  the  destruction  of  those  essential  human  rights,  of  which  he 
had  spoken  ?  What  would  be  the  probable  effects  of  .those  laws  ?  They 
would  establish  executive  influence,  and  executive  influence  would  produce 
a  revolution.  There  was  great  danger  in  throwing  too  great  weight?  in 
any  one  scale.  He  then  proceeded  to  inquire  whether  those  laws  would 
increase  executive. influence,  and  concluded  that  they  would.  That  they 
would  by  begetting  fear.  If  public  opinion  were  to  be  directed  by  govern- 
ment, by  means  of  fines,  penalties  and  punishments,  on  the  one  hand,  and 
patronage  on  the  other,  public  opinion  itself  would  be  made  the  stepping 
stone  for  usurpation.  If  Congress  should  undertake  to  regulate  public 
opinion,  they  would  be  sure  to  regulate  it  so  as  to  detach  the  people  from 
the  stare  governments,  and  attach  them  to  the  general  government.  But, 
he  said,  the  most  dangerous  effect  of  those  laws  would  be,  the  abolition 
of  the  right  to  examine  public  servants.  He  again  referred  to  Sidney's 
case,  and  recited  the  doctrine  of  Filmer,  to  illustrate  this  subject.  To 
bring  about  such  a  measure  as  this,  he  said,  it  would  be  necessary  for 
Congress,  in  the  first  place,  to  establish  the  point,  that  they  were  the  mas- 
ters, and  not  the  servants,  of  the  people.  He  said,  government  might  do 
wrong.  Could  a  criminal  be  ever  brought  to  justice,  who  had  a  power  to 


28  DEBATE  ON  VIRGINIA  RESOLUTIONS. 

regulate  the  mode  of  his  own  examination ?  And  is  it  not  criminal  in  a 
government  to  oppress  a  people  ?  If  its  acts  were  wrong,  they  would  pro- 
duce discontent:  discontent  was  the  only  road  to  redress.  But  redress 
could  never  be  obtained,  because  the  sedition  law  prohibited  the  only  mode 
of  obtaining  it,  by  punishing  that  very  matter  of  exciting  discontent.  He 
asked  what  was  despotism  ?  He  defined  it  to  be,  a  concentration  of  powers 
in  one  man,  or  in  a  body  of  men.  The  manner  of  concentrating  them 
was  unimportant :  the  end  was  the  same.  Individuals  and  states  were 
equally  affected  by  such  concentration  of  power.  The  concentration  of 
it  in  an  individual,  would  enslave  other  individuals ;  a  concentration  of  it 
in  Congress,  would  operate  to  the  destruction  of  the  state  governments  ; 
and  that,  if  the  balance  of  power  which  the  state"  governments  ought  to 
hold  against  Congress,  were  once  lost,  we  must  be  precipitated  into  a  revo- 
lution. He  adverted  to  the  vast  power  concentrated  in  the  Senate  of  the 
United  States.  This  had  been  seriously  viewed  at  the  time  of  the  adop- 
tion of  the  Constitution,  and  since.  That,  at  the  time  of  framing  the 
Constitution,  mutual  concessions  were  made  between  the  states,  which  he 
believed  to  be  the  sole  reason  for  admitting  the  small  states  to  an  equal 
share  of  power  in  that  body,  with  the  large,  the  real  counterbalance  of 
which  concession,  was  the  existence  of  state  governments.  Thence  he 
concluded,  that  being  thus  situated,  if  the  balance  which  the  states  ought 
to  hold,  should  happen  to  be  lost,  the  small  Senate  of  the  United  States, 
might  govern  America.  He  further  said,  that  although  he  had  read  in 
pamphlets  and  newspapers,  and  also  had  heard  it  reported,  that  such  prin- 
ciples as  he  held,  led  to  commotion,  still  he  would  assert  that  it  was  more 
likely  to  happen  that  a  majority  of  small  states  might  adopt  measures 
which  would  oppress  the  rest,  although  they  should  contain  the  greatest 
number  of  citizens :  and  that  the  result  ofthis  would  be  a  civil  war.  The 
many  would  not  submit  to  the  few,  and  all  history  would  show,  that  a 
majority  armed  with  power,  would  never  yield  it  without  a  struggle.  He 
said  thet  oppression  was  the  road  to  civil  war.  To  prove  which,  he 
asked  what  produced  the  war  between  Britain  and  America?  Oppression. 
What  produced  the  revolution  of  France?  Oppression.  What  produced 
the  revolt  of  the  United  Provinces  from  Spain?  Oppression.  He  said, 
the  way  to  keep  a  nation  quiet,  was  to  make  it  happy :  that  oppression 
goaded  it  on  to  civil  war.  In  justification  of  which  opinion,  he  stated  that 
the  people  of  the  United  States  were  at  this  time  under  the  pressure  of 
certain  grievances.  The  way  then  to  stop  civil  war,  would  be  to  stop  op- 
pression. But,  said  gentlemen,  we  must  not  disunite.  To  this  he  would 
answer,  remove  oppression,  and  union  would  take  place.  He  had  ob- 
served it  asserted  in  a  pamphlet  circulated  at  this  place,  that  these  late 
measures  of  the  government  might  be  justified  on  the  ground  of  self-de- 
fence. Under  such  a  pretence  as  that,  he  said,  Congress  might  pass  any 
law  whatever.  This  never  could  have  been  the  object  of  the  Constitution. 
He  said,  that  the  old  instrument  of  confederation  contained  the  same  lan- 
guage, but  no  such  power  as  that  contended  for  was  ever  claimed.  Had 
it  ever  possessed  it,  its  want  of  energy  would  not  have  suggested  the  pre- 
sent Constitution.  (He  then  read  the  preamble  of  the  articles  of  confede- 
ration, reciting  that  the  same  was  entered  into  for  the  public  good,  &c.) 


DEBATE  ON  VIRGINIA  RESOLUTIONS.  29 

By  adopting  a  different  construction  from  that  made  by  himself,  he  said 
the  propriety  of  no  law  which  Congress  should  ever  pass  could  be  denied. 
He  then  concluded  by  saying,  that  our  rights  were  the  offspring  of  pangs 
and  peril.  Let  them  never  then  be  wrested  from  us.  It  was  the  custom 
in  some  countries,  for  the  prince  to  send  for  the  first  born  child  of  every 
subject,  to  have  him  trained  as  a  soldier  for  his  army.  In  that  case,  could 
the  distressed  parent  be  assured  that  by  surrendering  his  first-born,  he 
would  secure  the  rest  ?  The  first-born  of  American  rights,  was  the  free 
examination  of  public  servants.  Were  we  to  surrender  that,  could  we  be 
certain  that  the  rest  would  be  secured  ?  .That  these  rights  were  the  fruit 
of  victory,  and  recompense  of  blood.  We  had  defended  them  against  the 
arms  of  Britain.  Never  then  let  us  surrender  them  to  the  arts  of  sophistry 
and  ambition. 

Mr.  George  K.  Taylor  moved  that  the  committee  might  rise,  in  order 
to  give  time  to  himself  and  the  other  members  to  consider  well  the  subject 
before  them.  He  said,  it  was  an  important  one,  as  the  object  of  inquiry 
seemed  to  be,  to  impeach  with  unconstitutionality,  two  laws  passed  by 
both  Houses  of  Congress,  and  by  them  declared  to  be  constitutional.  * 

Mr.  Foushee  made  a  few  remarks  in  opposition  to  those  of  Mr.  George 
K.  Taylor  in  regard  to  the  probable  constitutionality  of  the  laws,  by  rea- 
son of  their  having  passed  both  Houses  of  Congress. 

Mr.  Nicholas  hoped  that  the  gentleman  from  Prince  George  did  not 
intend,  by  moving  to  rise,  to  preclude  from  speaking  any  person  then  dis- 
posed to  speak. 

Mr.  George  K.  Taylor  said  that  he  did  not ;  but  (after  waiting  some 
time  and  no  member  rising  to  speak)  he  renewed  his  motion  for  the*  com- 
mittee's rising. 

The  committee  rose  accordingly,  reported  progress,  and  had  leave  to 
sit  again. 


IN  THE  HOUSE  OF  DELEGATES, 

Friday,  December  14,  1798. 

The  House  resolved  itself  into  a  committee  of  the  whole  House,  on  the 
state  of  the  Commonwealth,  Mr.  Brackenridge  in  the  chair,  when,  Mr. 
John  Taylor's  resolutions  being  still  under  consideration,  Mr.  MagiU  said, 
if  he  were  in  order,  he  would  move  that  the  resolutions  should  be  read. 

The  chairman  declared  the  same  to  be  in  order,  and  the  resolutions 
were  read  accordingly  by  the  clerk.  Whereupon, 

Mr.  GEORGE  K.  TAYLOR  arose,  and  said  that  he  never  felt  himself  im- 
pressed with  more  awe  than  on  that  occasion.  The  subject  was  of  itself 
sufficiently  momentous ;  but  the  resolutions  before  them  rendered  it  still 
more  so.  They  contained  a  declaration,  not  of  opinion,  but  of  fact. 
They  declared  the  acts  of  Congress,  called  the  alien  and  sedition  laws,  to 


30  DEBATE  ON  VIRGINIA  RESOLUTIONS. 

be  unconstitutional,  and  not  law.  These  laws,  he  said,  had  been  passed 
by  both  houses  of  Congress.  One  of  those  houses  was  formed  of  the 
immediate  representatives  of  the  whole  American  people,  the  other  of 
members  chosen  by  the  state  legislatures.  These  two  houses  thus  formed, 
and  thus  representing  the  whole  people,  and  the  respective  state  sovereign- 
ties, had  passed  those  laws  after  solemn  deliberation  and  discussion,  and 
declared  them  to  be  constitutional.  In  such  case,  he  conceived,  the  Legis- 
lature of  Virginia,  the  representative  of  a  part  only  of  the  American 
people,  ought  to  deliberate  seriously  before  they  undertook  to  give  an 
opinion  upon  them ;  and  if  their  opinion  should  be  such  as  the  resolutions 
stated,  they  should  still  endeavour  to  couch  that  opinion  in  different 
language;  for,  by  those  resolutions,  as  they  then  stood,  the  people  were 
encouraged  most  openly  to  make  resistance.  He  compared  the  two  legis- 
lative bodies,  Congress  and  the  Assembly  of  Virginia,  together.  He  pre- 
sumed the  former  to  be  as  wise,  as  watchful  of  the  public  interests,  as  the 
latter.  He  then  called  the  attention  of  the  committee  to  what  had  been 
the  determination  of  the  legislatures  of  the  other  states.  All  which  had 
taken  these  laws  under  their  consideration,  had  given  them  their  decided 
approbation,  either  by  way  of  resolution,  or  address  to  the  President.  It 
could  not  be  denied  but  that  they  had  some  wisdom,  and  that  it  was  not 
exclusively  confined  to  the  Legislature  of  Virginia.  As  the  legislatures 
then,  of  so  many  states,  had  concurred  in  the  approbation  of  them,  he 
thought  it  necessary  for  the  Legislature  of  this  state  to  hesitate  in  ex- 
pressing its  opinion  of  their  unconstitutionality,  especially  when  they  re- 
flected on  the  consequence  attending  it.  For  if  these  laws  were  unconsti- 
tutional, the  resolutions  made  it  the  duty  of  the  people  to  defend  them- 
selves against  them.  He  said  he  would  then  proceed  to  show  to  the 
committee,  that  those  laws  were  not  unconstitutional.  In  that  attempt  he 
was  not  certain  whether  or  not  he  should  succeed.  He  possibly  might 
bring  them  to  doubt,  and  should  he  do  that,  he  should  feel  in  some 
measure  satisfied.  On  the  other  hand,  they  might  be  assured  that  the 
consequences  of  pursuing  the  advice  of  the  resolutions,  would  be  insurrec- 
tion, confusion,  and  anarchy.  The  business  upon  which  they  were  acting, 
he  said,  was  of  an  extensive  nature.  The  gentleman  from  Caroline  had 
spoken  upon  both  laws.  He  should  confine  himself  to  the  alien  law 
only.  He  conceived  that  would  be  as  much  as  he  could  perform.  For 
in  doing  that,  he  should  fatigue  himself,  and  he  expected  the  committee 
also. 

He  proceeded  then  to  examine  the  situation  of  aliens  coming  into  this 
country.  He  said,  they  had  no  more  rights  here,  than  they  had  else- 
where. He  asked  upon  what  footing  aliens  came  into  any  country?  By 
right,  or  by  permission?  Still  it  was  said,  that  their  rights  were  to  be 
affected  by  this  law  of  Congress.  He  then  cited  and  read  Vattel,  page 
157,  section  94,  to  show  that  a  nation  may  prohibit  foreigners  from 
entering  its  territory  ;  and  from  that  authority  concluded,  that  their  admis- 
sion into  a  country  was  by  no  means  a  matter  of  right,  but  of  favour. 
He  said,  the  alien  did  not  come  within  the  scope  of  the  general  laws  of 
the  country  into  which  he  came.  During  his  stay  therein,  he  was  to  be 
protected  indeed  by  those  laws ;  but  was  not  the  object  of  them.  He  cited 


DEBATE  ON  VIRGINIA  RESOLUTIONS.  31 

and  read  Vattel  again,  page  100,  section  231,  and  Blackstone's  Commen- 
taries, vol.  1,  page  259,  to  show  that  by  the  law  of  nations,  it  is  left  in 
the  power  of  all  states  to  take  such  measures  about  the  admission  of 
strangers  as  they  think  convenient :  that  so  long  as  their  nation  continued 
at  peace  with  that  in  which  they  resided,  and  they  behaved  themselves 
peaceably,  they  were  under  the  protection  of  the  government  of  that 
nation,  though  liable  to  be  sent  or  ordered  away,  whenever  that  govern- 
ment saw  occasion,  or  its  safety  required  it.  If  there  were  nothing  then, 
he  said,  in  the  Constitution  of  the  United  States,  respecting  the  migration 
of  persons,  the  doctrine  of  the  law  of  nations  which  he  had  read,  was 
sound,  and  the  general  government  might  by  that  lawfully  restrain  or 
regulate  the  entry  of  aliens,  and  order  them  away  if  necessary.  But  the 
Constitution  had  a  clause  in  it  upon  that  subject,  being  the  first  clause  of 
the  ninth  section  of  the  first  article,  which  he  read,  in  these  words :  "The 
migration  or  importation  of  such  persons  as  any  of  the  slates  now  exist- 
ing shall  think  proper  to  admit,  shall  not  be  prohibited  by  the  Congress 
prior  to  the  year  1808  ;  but  a  tax  or  duty  may  be  imposed  on  such  im- 
portation, not  exceeding  ten  dollars  for  each  person."  This  clause  then, 
he  said  contained  a  recognition  of  the  right  of  Congress  to  prohibit  mi- 
gration or  importation  after  the  year  1809.  In  his  opinion  too,  the  pro- 
hibition of  the  right  of  Congress  by  that  clause,  extended  only  to  such 
states  as  were  existing  at  the  time  of  framing  the  Constitution ;  which 
showed  that  Congress  of  course  might  regulate  the  migration  of  persons 
to  such  states  as  were  established  after  that  time ;  and  that  was  exempli- 
fied by  the  prohibition  by  Congress  of  the  admission  of  slaves  into  the 
new  states.  The  clause  read,  then,  took  away  from  Congress  the  right  of 
prohibiting  migration  within  a  limited  time.  But  though  the  entry  was 
prevented,  the  question  then  recurred,  was  their  removal  when  dangerous 
prevented  also?  The  question  was  of  great  importance.  When  these 
states,  he  said,  declared  themselves  independent,  they  entered  into  articles 
of  confederation.  That  was  a  system  composed  of  one  body  :  there  was 
no  executive,  no  judiciary.  By  that  system,  that  single  body  could  enact 
nothing  binding  on  the  people.  It  was  consequently  dependent  on  the 
several  states  for  the  execution  of  all  its  measures.  The  old  Congress 
wished  to  establish  a  duty  of  five  per  centum  only  on  goods  imported,  but 
it  could  not  be  carried  into  effect  by  reason  of  the  opposition  of  the  states. 
To  obviate  that  mischief  the  Federal  Convention  was  appointed,  which 
assembled  and  framed  the  present  Constitution.  That  took  from  the 
several  states  all  matters  of  a  general  nature ;  all  matters  relating  to 
foreign  nations.  It  established  legislative,  executive,  and  judiciary 
branches,  which  acted  upon  the  several  matters  coming  within  their 
respective  spheres ;  and  it  certainly  intended  that  all  matters  of  general 
national  concern  should  be  confided  exclusively  to  the  general  govern- 
ment. There  was  a  general  consent  of  the  people  that  such  matters 
should  be  vested  in  the  general  government,  and  taken  from  the  states. 
He  then  read  the  list  of  powers  vested  by  the  Constitution  in  the  general 
government.  By  the  general  law  of  nations,  he  said,  the  admission  of 
aliens  into  a  country  was  altogether  a  matter  of  grace.  They  might 
therefore  be  removedyby  the  government  of  the  country,  whenever  it  was, 


32  DEBATE  ON  VIRGINIA  RESOLUTIONS. 

deemed  necessary.  If  the  general  government,  then,  possessed  not  the 
power  of  removal,  one  great  mischief  of  a  general  nature,  which  it  was 
intended  to  remedy,  would  remain  as  before.  The  union  would  be  depen- 
dent upon  sixteen  sovereign  and  jealous  states,  for.  carrying  into  effect 
such  a  measure.  Some  of  these  states,  too,  might  be  on  the  verge  of  in- 
surrection. An  alien  banished  from  one  might  be  admitted  into  another, 
which  would  protect  him,  and  thereby  the  general  welfare  in  that  instance 
defeated,  and  Congress  laid  at  the  mercy  of  the  particular  states.  He  asked 
what  was  the  situation  of  America  and  France  at  that  time  ?  It  was  true 
there  was  no  declaration  of  war  between  them,  but  they  were  not  at  peace. 
He  enumerated  their  various  acts  of  hostility  towards  us,  and  then  asked 
if  there  was  no  danger  to  be  apprehended  from  aliens  of  that  country. 
He  himself  thought  there  was.  He  related  also  the  numerous  designs  and 
machinations  which  they  had  been  contriving  against  us.  He  deemed  it 
therefore  highly  necessary  that  the  general  government,  established  for 
general  benefit  and  common  protection,  should  possess  the  power  of  removing 
them.  But,  if  the  law  of  Congress  were  to  be  construed  unconstitutional ,  the 
general  government  could  not  remove  them.  He  read  the  observations 
of  Mr.  Jefferson  respecting  the  necessity  of  a  government  having  the 
powers  of  defence  and  protection ;  also  Mr.  Madison's  speech  in  the  Con- 
vention of  Virginia  to  the  same  effect ;  and  applied  them  to  the  case  in 
question.  It  was  true,  he  said,  that  the  Constitution  prohibited  the  general 
government  from  preventing  the  migration  of  foreigners  prior  to  the  year 
1808 :  but  at  the  same  time,  the  principles  of  protection  must  induce  a 
belief  that  the  Constitution  did  not  intend  or  enact,  that  when  here,  they 
should  not  be  removed,  however  dangerous  to  the  general  weal.  Still, 
however,  it  was  objected,  that  by  the  twelfth  amendment  to  the  Constitution 
it  was  declared,  that  the  powers  not  granted  to  Congress,  were  retained  by 
the  people,  or  the  states  respectively.  It  was  clear,  he  said,  that  even 
without  that  amendment,  no  power  could  have  been  exercised  by  Congress, 
which  was  not  expressly  given  to  it,  or  did  not  follow  by  necessary  impli- 
cation. The  case,  he  said,  was  still  the  same.  In  regard  to  an  express 
grant,  there  could  be  no  dispute ;  and  the  doctrine  of  necessary  implication 
was  proved  by  the  Constitution,  when  in  the  last  clause  of  the  8th  section, 
it  grants  to  Congress  the  power  "  to  make  all  laws  which  shall  be  neces- 
sary and  proper  for  carrying  into  execution  the  foregoing  powers,  and  all 
other  powers  vested  by  that  Constitution  in  the  government  of  the  United 
States,  or  in  any  department  or  officer  thereof."  From  that  clause,  then, 
he  said,  the  power  of  Congress  to  pass  the  law  in  question,  was  clearly 
sanctioned  by  necessary  implication.  All  cases  arising  under  the  Consti- 
tution could  not  be  foreseen  and  enumerated :  therefore,  that  clause  was 
inserted  for  the  purpose  of  enabling  Congress  to  carry  into  effect  the  powers 
expressly  given  it  by  the  Constitution.  Whatever  then  necessarily  flowed 
from  these  express  powers,  were  within  the  scope  of  Congress.  He  then 
asked  if  there  were  anything  in  the  Constitution,  from  which  the  law  in 
question  could  necessarily  and  properly  proceed?  To  discover  that,  he 
first  proceeded  to  examine  the  preamble.  That,  he  said,  declared  the  Con- 
stitution to  be  formed  in  order  to  form  a  more  perfect  union,  establish  justice, 
insure  domestic  tranquillity,  provide  for  the  commor ^defence,  promote  the 


33 

general  welfare,  and  secure  the  blessings  of  liberty  to  ourselves  and  our 
posterity.  The  passage  of  an  alien  law  then,  he  said,  was  justifiable 
for  the  purpose  of  answering  the  four  great  ends  last  mentioned  in  the 
preamble,  which  showed  the  object  and  intention  of  the  Constitution. 
But  he  said,  there  was  something  in  it  more  positive.  He  called  their 
attention  to  that  clause  in  the  enumeration  of  the  powers  of  Congress  "to 
define  and  punish  piracies  and  felonies  committed  on  the  high  seas,  and 
against  the  law  of  nations;"  and  said,  that  aliens  came  within  it,  since 
for  an  alien  to  conspire  against  the  peace  of  the  nation,  which  permitted 
him  a  residence  therein,  was  an  offence  against  the  law  of  nations.  He 
further  read  the  clause  declaring  that  the  United  States  would  guarantee 
to  the  several  states  a  republican  form  of  government,  and  protect  each  of 
them  against  invasion.  He  relied  much  upon  the  term  protect  used  in 
that  clause.  Protection,  he  said,  was  a  preventing,  a  guarding  against. 
He  would  compare  it  to  a  shield,  which  an  individual  cast  before  him  to 
protect  himself  against  the  javelin  before  it  reached  him  ;  for  it  would  be 
no  protection,  if*he  waited  till  the  wound  was  inflicted.  He  observed,  that 
whatever  flowed  from  a  grant,  followed  the  grant  itself.  Congress,  there- 
fore, in  protecting  the  states,  might  enact  cautionary  laws  for  the  purpose. 
A  law  sending  away  dangerous  aliens  was  a  cautionary  law,  tending  to 
protect  the  states.  Every  society  had  as  much  right  to  prevent  the  mis- 
chief which  aliens  might  do,  as  to  punish  them  for  it  after  it  was  done. 
Aliens  might  be  punished  for  crimes  as  well  as  citizens.  So,  laws  might 
be  passed  for  preventing  the  commission  of  crimes  by  them,  as  well  as  for 
preventing  the  commission  of  them  by  cit/zens.  But  such  a  law  must 
always  be  temporary.  It  could  not  be  permanent.  It  would  continue 
only  so  long  as  danger  existed.  It  would  a/fect  only  dangerous  persons. 
Aliens  could  only  be  dangerous  in  time  of  war,  or  in  times  verging  towards 
war.  In  times  of  safety,  such  a  law  would  be  unnecessary  and  improper. 
He  agreed,  therefore,  that  a  permanent  law  of  that  kind  including  all  aliens^ 
passed  before  1808,  would  be  unconstitutional ;  since  it  might  absolutely 
defeat  the  9th  section.  Bui  that  a  temporary  law  passed  only  for  the  pur- 
pose  of  ordering  away  dangerous  aliens,  was  a  law  of  protection  to  the 
states.  It  was  a  necessary  power  for  every  government  to  possess.  A 
government  would  be  worth  nothing  without  it,  since  it  could  not  protect 
the  people.  He  th^n  proceeded  to  take  the  Constitution  altogether,  reca- 
pitulated the  several  clauses  before  cited,  and  said  it  was  a  rule  of  con- 
struction of  all  instruments,  that  all  the  parts  should  be  taken  and  con- 
sidered together,  that  they  might  stand  together,  and 'be  reconciled  with 
one  another  if  possible.  He  called  their  attention  to  two  clauses  of  the 
Constitution,  the  ninth  section  of  the  first  article  reserving  to  the  states  the 
right  of  permitting  migration,  &c.,  and  the  fourth  section  of  the  fourth 
article,  which  declares  that  the  United  States  shall  protect  each  state 
against  invasion.  When  one  part,  then,  of  the  Constitution,  he  said, 
reserved  to  the  states  the  right  of  permitting  migration,  and  another 
granted  to  Congress  the  power  and  duty  of  passing  all  such  laws  as  would 
protect  the  states  from  invasion  or  violence,  would  not  the  same  operate 
as  a  proviso  qualifying  the  former  general  expression,  and  allow  Congress 
from  principles  of  protection,  to  expel  dangerous  aliens  ?  He  thought  at 


34  DEBATE  ON  VIRGINIA  RESOLUTIONS. 

any  rate  the  power  in  that  case  contended  for,  a  necessary  one,  even  were 
it  not  in  the  Constitution.     And  in  such  a  case,  the  legislature  ought  to 
recommend  an  amendment  to  the  Constitution  for  the  purpose.     Since  the 
adoption  of  the  Constitution,  he  said,  Congress  had  passed  laws  for  erecting 
forts  in  different  parts  of  the  United  States.     He  asked  what  part  of  the 
Constitution  gave  them  that  power  ?     They  must  derive  it  from  the  fourth 
section  of  the  fourth  article  only,  the  same  being  for  the  purpose  of  pro- 
tection.    There  was  a  necessity  for  exercising  this  power  at  that  time. 
We  had  amongst   us  a  number  of  dangerous  Frenchmen.     The  chief 
author  however  of  tlje  plots  had  sneaked  off,  as  well  as  his  associates.     He 
said  he  was  happy  to  be  clear  of  them.     Since  they  were  gone,  that4aw 
was  no  longer  necessary  :  Congress  might  then  properly  repeal  it.     Yes, 
he  said,  the  incendiaries  were  gone.     He  congratulated  America  upon  it. 
He  hoped  they  never  might  return.     But  an  objection  had  been  made  that 
the  alien  law  had  taken  away  from  the  poor  alien  the  trial  by  jury.     He 
said  that  aliens  were  not  a  party  to  the  compact,  but  citizens  only.     The 
Constitution  secured  rights  to  citizens,  and  declared  that  they  should  not 
be  deprived  of  them,  but  by  trial  by  jury.     But,  aliens  not  being  a  party 
to  the  compact,  were  not  bound  by  it  to  the  performance  of  any  particular 
duty,  no.r  did  it  confer  upon  them  any  rights.     He  referred  to  Vattel  again, 
to  show  that  by  the  law  of  nations,  the  admission  of  aliens  into  a  country 
was  not  a  matter  of  right,  but  of  favour ;  and  observed  that  ordering  away 
an  alien,  was  not  divesting  him  of  any  right,  but  withdrawing  from  him  a 
favour ;  and  that  it  was  new  doctrine  that  a  favour  could  not  be  withdrawn, 
but  by  trial  by  jury.     He  then  observed  that  the  alien  law  did  not  touch 
life,  liberty,  or  property ;  but  only  directed  the  alien  to  be  removed.     If  he 
would  not  remove  himself,  however,  when  ordered  away,  but  remained 
obstinate,  he  might  then  be  imprisoned.     He  read,  and  relied  upon  the 
favourableness  of  that  clause  of  the  law  which  extended  to  the  suspected 
alien  the  right  of  proving  to  the  Presidem  that  he  was  harmless.     He  still 
asserted  that  the  law  of  nations  gave  a  power  to  the  government  to  remove 
aliens  when  dangerous ;  and  that,  by  the  law  in  question,  neither  life, 
liberty,  or  property  was  touched,  except  in  cases  Of  contumely.     He  then 
stated  the  case  authorized  by  our  municipal  laws,  respecting  surety  of  the 
peace;  and  asked,  how  did  the  trial  by  jury  stand  in  that  case?     The 
citizen,  he  said,  was  deprived  of  it,  and  that  too  in  a  free  country.     The 
case  of  the  alien  then,  was  not  harder.     The  trial  by  jury  was  dispensed 
with  in  the  case  of  the  peace-breaker ;  therefore,  the  same  might  be  done 
in  the  case  of  an  alien.     He  said,  that  the  terms  upon  which  aliens  were 
admitted,  were,  their  not  intermeddling  with  the  concerns  of  the  nation. 
Should  they  do  so,  and,  upon  being  required  to  withdraw,  continued  obsti- 
nate, they  must  be  committed  in  the  same  manner  as  citizens  who  refused 
to  give  surety  of  the  peace. 

Another  objection  had  been  made,  that  if  they  were  sent  out  without 
trial  by  jury,  they  might  next  be  deprived  of  life  and  property  without  it. 
This,  he  said,  could  not  be  done.  An  alien  was  entitled  to  them  as  natural 
rights,-  and  therefore,  as  they  were  rights,  could  not  be  deprived  of  them 
without  a  trial  by  jury.  The  case  was  quite  different  in  regard  to  his 
removal,  as  his  admission  into  the  country  was  not  matter  of  right,  but 


ON  VIRGINIA  RESOLUTIONS.  35 

Was  merely  a  matter  of  favour.  It  had  been  also  objected,  that  the  three 
powers  of  government  were  all  blended  in  the  President  by  the  alien  law, 
He  said  that  ^hey  were  not.  But,  if  such  a  power  in  regard  to  aliens  were 
necessary,  it  must  be  entrusted  somewhere.  It  could  not  be  with  a  private 
individual.  It  could  not  be  with  the  judiciary.  It  could  not  be  with  the 
legislature ;  but  might  most  properly  be  with  the  executive.  He,  by  the 
Constitution,  was  bound  to  execute  the  laws :  therefore,  it  was  most  pro- 
perly entrusted  with  him,  being  the  executive  officer,  with  whom  all  per- 
sons and  bodies  whatever  were  accustomed  to  communicate.  It  could 
least  of  all  be  entrusted  with  a  court  which  transacted  its  business  pub- 
licly. For  these  matters  must  be  in  confidence.  That  was  often  neces- 
sary for  nipping  things  in  the  bud.  Secrecy  then  being  absolutely  neces- 
sary, and  a  court  of  law  being  publicly  held,  and  at  stated  periods,  the 
proceedings  might  be  divulged,  or  the  explosion  take  place,  before  they 
could  obtain  information,  or  try  the  ftlct.  And  all  that  too,  not  for  the 
sake  of  a  matter  of  right,  but  mere  courtesy.  It  could  not  be  entrusted 
to  the  legislature,  unless  its  sittings  were  permanent :  it  could,  then,  only 
be  entrusted  with  the  president.  To  prove  the  justice  and  fairness  of  this 
regulation,  he  again  introduced  the  case  of  a  man  brought  before  a  magis- 
trate to  give  surety  of  the  peace.  On  the  complaint  of 'A.,  he  said,  the 
magistrate  might  arrest  and  imprison  B.,  until  he  gave  security  to  be  of 
good  behaviour.  In  that  case,  a  man  was  deprived  of  liberty  without  a 
trial  by  jury ;  but  that  was  right,  because  society  was  bound  to  protect  as 
well  as  vindicate  its  citizens ;  and  before  a  trial  of  the  fact  could  be  had, 
the  person  apprehending  danger  might  be  murdered.  He  again  cited  Mr. 
Jefferson's  piece  to  prove,  that  no  cases  under  the  law  of  nations  were 
ever  submitted  to  a  jury  to  be  tried.  He  cited  also  part  of  a  speech  of 
Mr.  Madison,  in  the  Convention  of  Virginia,  nearly  to  the  same  effect ; 
and  thereupon  observed,  that  the  trial  by  jury  was  only  used  in  municipal 
regulations,  where  citizens  and  others  were  concerned  under  the  particu-. 
lar  laws  of  the  state,  and  not  in  cases  between  the  government  and  aliens, 
which  arise  under  the  law  of  nations.  That  even  in  matters  of  right,  the 
right  of  the  individual  ought  to  yield  to  the  good  of  the  community.  He 
then  read  that  clause  in  the  Constitution  concerning  the  suspension  of  the 
writ  of  habeas  corpus,  and  said,  that  the  suspension  of  that  writ  might 
take  place  during  the  existence  of  rebellion  or  invasion.  In  that  case,  a 
citizen  might,  at  the  will  of  the  President,  be  committed  and  confined  until 
the  existing  danger  was  over.  And  if  a  citizen,  invested  with  all  civil 
rights,  might  thus  be  confined  in  a  time  of  danger,  so  ought  an  alien, 
who  had  no  positive  political  right  .whatever,  when  the  good  of  the  com- 
munity required  it.  He  said,  he  might  produce  many  other  instances, 
to  prove  the  propriety  of  necessary  implication.  He  then  mentioned  the 
subject  of  foreign  intercourse,  and  asked  whence  was  that  power  derived  ? 
He  knew  no  part  of  the  Constitution  which  particularly  authorized  it.  It 
could  be  derived  only  from  that  clause  of  the  Constitution,  which  pro- 
hibited to  the  states  the  power  of  making  any  treaties,  or  entering  into 
any  agreements.  It. had  been  observed  by  the  gentleman  from  Caroline, 
that  Congress  had  passed  a  law  to  send  away  alien  enemies,  and  that  was 
a  good  law.  Where  was  that  power  to  be  found  T  Nowhere,  except  it 


36  DEBATE  ON  VIRGINIA  RESOLUTIONS. 

were  derived  from  that  protective  power,  which  was  to  be  gathered  from 
the  Constitution  by  means  of  implication  only,  or  by  implication  from  the 
power  given  to  declare  war.  He  further  asked,  at  what  time  those  laws 
were  passed,  and  what  was  the  cause?  And  then  observed,  that  whatever 
construction  led  to  an  absurdity,  was  erroneous.  He  then  supposed  the 
case  of  the  states  having  the  power  of  admitting  aliens,  and  the  General 
Government  not  having  the  power  of  removing  them.  The  Assembly  of 
Virginia  might  think  a  whole  army  of  aliens  admissible.  Suppose,  he 
said,  that  Bonaparte  and  his  army  (if  they  could  ever  get  out  from  me 
Nile  again)  were  to  arrive  within  the  state,  and  they  should  think  them 
too,  admissible ;  by  the  construction  of  the  resolutions  before  them,  Con- 
gress in  such  case  ought  not  to  remove  them.  The  right  of  protection, 
he  said,  was  a  natural  right,  appertaining  to  each  individual,  and  that  a 
number  of  individuals  had  as  much  right  to  protect  themselves  as  one 
individual.  Did  the  Constitution  prohibit  such  a  right  ?  He  then  observed, 
that  both  the  Constitution  of  the  United  States,  and  of  this  state,  directed 
that  the  trial  by  jury  should  be  held  sacred.  He  said,  he  would  then  pro- 
ceed to  examine  if  that  right  had  never  been  pretermitted  by  any  law  of 
the  state;  and  requested  that  the  law  of  Virginia,  for  removal  of  aliens, 
passed  in  1792,  should  be  first  read.  (It  was  read  accordingly  by  the 
clerk.)  He  then  observed,  that  although  the  Constitution  of  the  state 
directed  that  the  trial  by  jury  should  be  held  sacred,  yet  that  law  "  autho- 
rized the  Governor  to  apprehend,  and  secure,  and  compel  to  depart  out  of 
the  commonwealth,  all  suspicious  persons,  &c.,/rom  whom  the  President 
of  the  United  States  should  apprehend  hostile  designs  against  the  said 
states"  In  that  instance,  then,  a  previous  legislature  had  acknowledged 
as  a  matter  indisputable,  what  this  legislature  disputed,  that  a  suspicious 
alien  might  be  sent  away  at  the  instance  of  the  President.  Their  law 
even  authorized  the  sending  away  the  alien  without  a  trial,  and  in  the 
mean  time  his  being  imprisoned.  Yet  that  legislature,  in  passing  that 
law,  did  not  suppose  it  had  viqlated  the  Constitution.  He  then  read  the 
act  of  Congress  under  consideration.  He  compared  both  acts  together, 
and  said  that  he  looked  upon  them  to  be  nearly  the  same.  If  there  were 
any  difference  between  them,  he  said  it  was,xthat  the  law  of  the  state  was 
more  severe  than  the  law  of  Congress,  inasmuch  as  the  former  subjected 
the  alien  to  imprisonment  at  all  events:  the  latter  only  in  case  of  his 
refusal  to  remove  himself.  It  was  remarkable,  too,  he  said,  that  the  same 
law  of  the  state,  although  passed  in  1792,  was  re-enacted  from  one  passed 
in  1785,  thirteen  years  ago,  and  so  many  years  nearer  than  the  present 
time  to  the  Revolution,  when  it  is  to  be  supposed  the  principles  of  that 
Revolution  were  much  purer  than  they  were  at  the  present  time.  He  then 
contended  that  there  was  the  same  reservation  to  the  people  of  all  powers 
not  granted  to  the  state  government,  as  was  to  the  states  of  all  powers 
not  granted  to  the  General  Government.  Consequently,  the  trial  by  jury 
being  declared  sacred  by  the  bill  of  rights,  the  legislature  of  the  state 
could  have  no  more  power  by  the  Constitution  to  pass  such  a  law,  than 
Congress  had  by  the  Constitution  of  the  United  States.  Yet  no  complaint 
against  such  a  law  had  ever  been  heard  until  the  law  of  Congress  was 
passed.  All  the  clamour  had  been  reserved  for  that  alone.  He  again 


DEBATE  ON  VIRGINIA  RESOLUTIONS*  37 

observed,  that  no  other  state  legislature  had  passed  any  such  resolution 
as  the  one  before  them.  They  must  be  presumed  to  be  equally  watchful : 
they  must  be  presumed  to  have  wisdom  too,  and  that  it  was  not  exclu- 
sively confined  to  this  legislature.  They  should  hesitate,  therefore,  in 
making  such  a  declaration  as  was  then  contemplated.  He  then  called  for 
the  reading  of  the  law  of  the  state,  which  authorized  the  delivering  up  a 
citizen  committing  a  crime  in  a  foreign  country,  at  the  instance  he  said  of 
the  United  States,  without  trial  by  jury,  on  mere  suspicion  and  on  demand. 
(The  clerk  read  the  law.)  <Mr.  Taylor  then  called  'the  attention  of  the 
committee  to  the  last  clause  of  the  law,  from  which  it  appeared  that  the 
offender  might  be  tried  by  a  jury  for  the  offence  in  this  state,  but  was 
deprived  of  such  a  trial  by  the  fourth  section,  where  he  was  delivered  up 
to  a  foreign  nation  on  requisition.  He  ascribed  the  reason  for  dispensing 
with  the  trial  by  jury,  in  the  latter  case,  to  be,  because  it  was  a  case 
within  the  law  of  nations,  which  admits  no  trial  by  jury,  and  still  that 
law  was  thought  not  incompatible  with  the  Constitution.  He  observed 
that  the  gentleman  from  Caroline  had  dilated  much  upon  the  probable 
effects  of  the  law  of  Congress  in  question.  He  would  indulge  himself  in 
the  same  manner. 

What,  said  he,  would  be  the  situation  of  this  country,  were  it  once 
known  that  Congress  had  no  such  power  as  that  of  removing  aliens  ?  He 
begged  them  to  recollect  what  horrid  scenes  of  devastation  and  carnage 
had  been  exhibited  by  Frenchmen  in  their  own  island  of  Saint  Domingo. 
If  France  would  abandon  her  people  there,  and  desolate  the  fairest  colony 
in  the  world,  could  it  be  supposed,  that  they  would  love  us  more  than 
themselves  :  that  they  would  spare  their  foes.  He  begged  them  to  recol- 
lect  too,  the  doubtful  state  of  affairs  between  our  country  and  France.  It 
was  true  that  the  two  nations  were  not  at  war,  since  no  declaration  of 
war  had  been  on  either  side,  but  they  were  not  at  peace,  since  each  party 
was  seizing  the  vessels  of  the  other.  War  then  might  ensue,  and  at  the 
time  the  alien  law  was  passed,  it  was  a  thing  extremely  probable.  Every 
nation,  before  it  struck,  prepared  as  deadly  a  blow  as  possible.  He  then 
asked  if  the  French  could  wound  us  in  any  respect  so  vitally,  as  by  arm- 
ing the  slave  against  his  master.  Attempts,  he  said,  had  been  already 
made,  by  French  emigrants,  to  excite  our  slaves  to  insurrection.  Suppose 
then,  they  were  to  attempt  the  thing  again,  and  an  insurrection  should 
accordingly  take  place,  what  would  be  the  consequence?  In  that  com- 
mon calamity,  he  said,  the  ranks  of  society  would  be  confounded ;  the 
ties  of  nature  would  be  cut  asunder;  the  inexorable  and  blood-thirsty 
negro  would  be  careless  of  the  father's  groans,  the  tears  of  the  mother, 
and  the  lamentations  of  the  children.  The  loudest  in  their  waitings  would 
be  their  wives  and  daughters  torn  from  their  arms,  with  naked  bosoms, 
outstretched  hands,  and  dishevelled  hair,  to  gratify  the  brutal  passion  of  a 
ruthless  negro,  who  would  the  next  moment  murder  the  object  of  his  lust. 
He  then  asked  how  all  that  was  to  be  prevented  ?  By  vesting  the  general 
government  with  that  power  to  remove  such  aliens,  which  it  had  already 
so  generously  exercised  for  the  purpose,  in  the  law  then  under  considera- 
tion :  a  law  particularly  calculated  for  the  protection  of  the  southern  states. 
He  then  mentioned  what  success  the  French  had  had,  in  other  countries 


38  DEBATE  ON  VIRGINIA  RESOLUTIONS. 

into  which  their  emigrants  had  been  admitted.  What  intrigues  they  had 
carried  on  in  Venice,  Switzerland,  Holland,  &c.,  all  which  countries  had 
been  expunged  from  the  list  of  republics,  and  added  to  the  already  over- 
grown dominions  of  France.  These  events,  he  said,  had  been  brought 
about  chiefly  by  stirring  up  the  people  to  discontent,  by  alien  incendiaries. 
It  was  necessary  then,  that  the  United  States  should  adopt  proper  measures 
to  prevent  such  mischiefs.  To  that  end,  said  he,  let  us  cherish  the  law 
passed  for  the  purpose.  He  then  proceeded  to  relate  the  late  conduct  of  the 
French  towards  us,  and  what  description  of<  persons  had  migrated  from 
that  country  to  the  United  States, — the  most  noted  characters  of  whom 
were  Volney  and  Talleyrand.  He  made  several  remarks  upon  the  con- 
duct of  both  of  them  while  in  this  country,  but  gave  a  particular  account 
of  the  peregrination  of  the  latter  from  Europe  to  America,  thence  back 
again  to  Europe:  how  he  was  denounced  and  proscribed  by  his  country- 
men, restored  to  favour  again,  and  in  the  end  preferred  to  the  ministerial 
office  which  he  then  held.  It  behoved  the  people  of  this  country,  there- 
fore, to  be  on  their  guard  against  him  and  all  the  rest.  He  wished,  he 
said,  to  conclude ;  for  he  was  conscious  that  he  had  fatigued  himself, 
and  he  supposed  the  committee  also.  He  should  be  glad,  however,  to  be 
permitted  at  some  other  time  to  deliver  his  sentiments  in  regard  to  the 
sedition  law.  He  thought  indeed,  that  the  best  way  thereafter  would  be 
to  discuss  one  law  at  a  time.  He  further  observed,  that  the  members  of 
that  Congress  which  had  passed  those  laws,  had  been,  as  far  as  he  could 
understand,  since  generally  re-elected  :  therefore,  he  thought  the  people  of 
the  United  States  had  decided  in  favour  of  their  constitutionality,  and  that 
such  an  attempt  as  they  were  then  making  to  induce  Congress  to  repeal 
the  laws,  would  be  utterly  nugatory. 

MR.  RUFFIN  arose  next,  and  said  that  he  was  convinced  his  abilities  would 
not  enable  him  to  place  the  subject  in  such  a  light  as  it  would  be  placed 
before  it  was  finished.  However,  as  it  was  a  matter  of  much  importance, 
he  was  induced  to  assign  his  reasons  for  the  vote  which  he  was  about  to 
give.  He  should  confine  himself,  he  said,  to  two  points :  the  constitu- 
tionality of  the  laws,  and  the  consequences.  The  alien  law,  he  said,  was 
unconstitutional  in  two  points :  and,  after  observing  that,  although  an  alien 
did  not  enjoy  all  the  rights  of  a  citizen,  yet  he  enjoyed  some,  he  proceeded 
to  show  in  what  points  that  law  was  unconstitutional.  He  thought  it  so 
for  two  reasons:  1st.  Because  it  blended  several  powers  in  one  person; 
and  2dly.  Because  it  contained  powers  not  granted  to  Congress  by  the 
Constitution.  He  then  proceeded  to  state  how  the  alien  was  to  be  deprived 
of  the  trial  by  jury,  and  to  be  banished  for  particular  acts,  at  the  time  of 
their  commission,  innocent,  but  which  might,  by  a  retrospective  operation 
of  the  said  act,  (the  President  being  thereby  armed  with  legislative  and 
judicial,  as  well  as  executive  power,)  be  made' criminal.  The  gentleman 
from  Prince  George,  he  said,  had  admitted  that  if  Congress  were  to  pass 
a  law  to  exclude  all  aliens  for  ever,  prior  to  the  year  1808,  it  would  be 
unconstitutional.  Mr.  Rujfin  then  begged  leave  to  inquire  as  to  the  diffe- 
rence of  the  effect  which  such  a  law  would  have  from  the  present  alien 
act  of  Congress,  should  Congress  annually  think  proper  to  re-enact  the 


DEBATE  ON  VIRGINIA  RESOLUTIONS.  39 

law  as  it  now  stood,  until  1808.  The  principle  and  effect,  he  said,  were 
the  same.  The  only  rational  conclusion,  then,  to  be  drawn  from  the  con- 
cession of  the  gentleman  was,  that  if  Congress  be  incompetent  to  the  pas- 
sage of  a  permanent  law,  (except,  indeed,  where  the  Constitution  interposes,) 
they  must  be  incompetent  to  the  passage  of  a  temporary  one.  But  the  gentle- 
man, he  said,  had  attempted  to  prove  the  constitutionality  of  that  act,  by 
saying  that  Congress  had  passed,  or  might  pass,  laws  respecting  alien 
enemies.  The  cases,  however,  Mr.  Ruffin  said,  were  extremely  different. 
Congress  alone  could  determine  upon  war  or  peace  :  consequently,  alien 
enemies  were  proper  subjects  for  congressional  legislation  :  but  that  alien 
friends  were  exclusively  subject  to  the  sovereignty  of  the  several  individual 
states ;  as  the  twelfth  article  of  the  amendments  to  the  Federal  Constitution 
expressly  declares,  that  "  the  powers  riot  delegated  to  the  United  States, 
by  the  Constitution,  nor  prohibited  by  it  to  the  states,  are  reserved  to  the  ' 
states  respectively,  or  to  the  people."  And  as  at  the  same  time,  he  said, 
the  only  power  given  by  that  compact  to  the  general  government,  over 
alien  friends,  was  in  the  ninth  section  of  the  first  article,  it  must  follow 
that  this  was  one  of  the  rights  reserved  to  the  states.  The  gentleman  last 
up,  he  said,  had  contended  however,  that  this  power  was  rightfully  exer- 
cised by  Congress,  and  had  taken  the  broad  ground  of  construction  and 
implication,  upon  which  to  erect  his  fabric.  Construction  and  implication, 
Mr.  Ruffin  said,  was  a  doctrine  which  he  had  hoped  was  banished  from 
the  councils  of  America.  It  was  a  doctrine  which  the  people  of  America 
had  unanimously  and  uniformly  protested  against.  It  was  the  exercise  of 
this  kind  of  right  by  the  British  parliament  which  involved  us  in  a  war 
with  that  government.  It  was  to  guard  against  the  exercise  of  such  a  power, 
that  the  state  constitutions  were  formed :  and  it  was  that  abhorrence  in 
America  to  constructive  and  implied  rights,  that  induced  the  specific  de- 
lineation of  congressional  powers.  Let  them  admit,  he  said,  the  position 
of  the  worthy  member,  and  then  mark  the  extent  to  which  it  would  carry 
them.  In  the  preamble  to  the  Constitution,  the  ends  designed  to  be  pro- 
duced by  that  compact,  are  enumerated.  Amongst  them  the  following : 
"  to  provide  for  'the  common  defence,  promote  the  general  welfare :"  and 
in  the  eighteenth  clause  of  the  eighth  section  of  the  first  article,  "  to  make 
all  laws  which  shall  be  necessary  and  proper  for  carrying  into  execution 
the  foregoing  powers,  &c.,"  were  the  parts  of  the  Constitution,  by  which 
it  was  contended,  that  those  constructive  and  implied  rights  are  given : 
Suppose,  said  Mr.  Ruffin,  the  general  government  should  be  of  opinion 
that  those  objects  would  be  produced  in  a  higher  degree  by  continuing 
the  present  members  in  office  for  ten  years,  or  for  life  ?  Was  there  any 
person  who  then  heard  him,  who  would  think  such  an  exercise  of  power 
legitimate  1  Certainly  not.  Yet  he  contended  that  such  a  power  was  as 
impliedly  given  by  the  Constitution,  as  that  which  Congress  had  taken 
upon  itself  to  exercise  over  alien  friends.  Mr.  Ruffin  then  concluded  by 
observing,  that  as  it  was  then  late,  and  the  committee  appeared  ,to  be 
fatigued,  he  should  reserve  the  rest  of  his  observations  for  another  oppor- 
tunity. 

The  committee  then  rose,  reported  progress,  asked  and  had  leave  to  sit 
again. 


40  DEBATE  ON  VIRGINIA  RESOLUTIONS. 


IN  THE  HOUSE  OF  DELEGATES, 
Saturday,  December  15,  1798. 

The  House  resolved  itself  into  a  committee  of  the  whole  House,  on  the 
state  of  the  commonwealth,  Mr.  Brackenridge  in  the  chair,  when  Mr.  John 
Taylors  resolutions  being  still  under  consideration, 

MR.  MERCER  arose  and  said,  that  he  felt  great  difficulty  in  prevailing 
upon  himself  to  take  a  part  in  the  very  interesting  discussion  which  had 
arisen,  and  would  probably  be  continued,  upon  the  resolutions  submitted 
to  the  committee.  This  difficulty  was  produced,  not  by  any  want  of  con- 
fidence in  the  rectitude  of  the  opinion  which  he  entertained,  or  in  the 
purity  of  the  motives  that  would  ultimately  direct  his  vote.  On  the  one 
hand,  he  was  deeply  impressed  with  the  importance  of  the  subject ;  on  the 
other,  he  felt  and  acknowledged  his  own  inability  to  do  justice  to  its 
merits;  but,  in  proportion  to  the  magnitude  of  the  question,  was  his  solici- 
tude to  explain  the  principles  upon  which  his  opinion  was  formed.  The 
manner  in  which  the  laws  complained  of  had  been  defended  here,  and  else- 
where, was  to  his  mind  more  alarming  than  the  laws  themselves.  It 
showed  that  gentlemen  were  ready  to  defend,  not  only  existing  violations 
of  the  federal  Constitution,  but  any  infractions  which  might  hereafter  be 
committed  upon  it.  For,  if  the  opinions  which  the  gentleman  from  Prince 
George  submitted  to  the  committee  yesterday,  be  correct,  the  nature  of 
that  Constitution  was  changed.  It  was  not  what  the  people  and  states  under- 
stood it  to  be  at  the  time  of  its  ratification.  Its  powers  were  enlarged  to  a 
dangerous  extent.  It  could  no  longer  be  considered  as  producing  a  con- 
federation, but  certainly  established  a  consolidated  government. 

Every  question,  Mr.  Mercer  said,  which  related  to  the  respective  powers 
of  the  state  and  general  government,  was,  in  itself,  of  magnitude  sufficient 
to  engage  the  whole  attention  of  gentlemen  who  were  desirous  of  preserving 
to  each  its  proper  powers,  and  to  maintain  that  entire  independence  which 
belongs  to  each,  and  which  each  had  a  right  to  enjoy.  He  was,  therefore, 
surprised,  when  he  heard  the  member  from  Prince  George,  yesterday, 
calling  the  attention  of  the  committee  to  subjects,  which,  however  inte- 
resting in  themselves,  could  not  be  supposed  to  have  the  most  remote 
connexion  with  the  resolutions  upon  the  table.  Those,  said  Mr.  Mercer, 
embrace  several  constitutional  questions,  which  ought  to  be  considered  by 
themselves;  they  point  out  a  plan  by  which  the  friends  of  the  paper  believe 
a  repeal  of  the  supposed  unconstitutional  acts  would  be  most  readily  ob- 
tained. It  was  a  solemn  appeal  to  the  understanding  of  the  committee ; 
yet,  the  injuries  of  France  to  America,  her  excesses  in  Europe,  always 
magnified  and  misrepresented  by  the  enemies  of  freedom  in  every  quarter 
of  the  world,  and  the  misfortunes  of  St.  Domingo,  had  been  pressed  with 
considerable  force  by  that  same  gentleman.  This  effort,  Mr.  Mercer  said,  • 
had  been  practised  with  great  effect  in  the  community.  It  was  scarcely 
possible  to  consider  the  measures  of  our  own  government,  and  candidly  to 


DEBATE  ON  VIRGINIA.  RESOLUTIONS.  41 

examine  their  influence  upon  the  public  happiness,  without  being  subject 
to  the  imputation  of  an  undue  attachment  to  a  foreign  power.  He  rejoiced 
in  knowing,  that  as  long  as  the  charge  had  existed,  and  as  often  as  it  had 
been  repeated,  not  a  single  instance  had  been  produced  throughout  Ame- 
rica, by  which  it  could  be  supported.  It  was  used  as  the  apology  for  a 
system  of  measures  which  could  not  have  been  adopted,  without  receiving 
the  universal  disapprobation  of  all  who  have  a  knowledge  of  the  principles 
of  the  federal  Constitution,  and  of  the  clear  limitation  of  power  contained 
in  that  instrument.  For  his  part,  he  did  not  see  how  a  view  of  the  insults 
offered  to  America  by  France,  could  decide  the  merit  of  the  resolutions. 
He  hoped  the  committee  were  ready  to  repel  the  former,  as  well  as  to 
consider  the  latter.  To  preserve  the  Constitution,  was  to  preserve  the 
union ;  and  to  maintain  that,  upon  the  principles  upon  which  it  was  origi- 
nally formed,  was  to  bid  defiance  to  every  foreign  power,  whose  conduct 
might  be  hostile  to  the  independence  and  rights  of  our  country. 

The  gentleman  from  Prince  George  had  told  the  committee  that  the 
resolutions  introduced  by  the  gentleman  from  Caroline  were  calculated  to 
ronse  the  people  to  resistance,  to  excite  the  people  of  Virginia  against  the 
could  result  from  their  adoption.  They  contained  nothing  more  than  the 
federal  government.  Mr.  Mercer  did  not  see  how  such  consequences 
sentiments  which  the  people  in  many  parts  of  the  state  had  expressed,  and 
which  had  been  conveyed  to  the  legislature  in  their  memorials  and  reso- 
lutions then  lying  upon  the  table.  He  would  venture  to  say,  that  an 
attention  to  the  resolutions  before  the  committee  would  prove  that  the 
qualities  attempted  to  be  attached  to  them  by  the  gentleman  could  not  be 
found.  He  begged  leave  to  read  the  first  and  second  clause,  in  which  it 
is  declared,  "that  the  General  Assembly  doth  unequivocally  express  a  firm 
resolution  to  maintain  and  defend  the  Constitution  of  the  United  States, 
and  the  constitution  of  this  state ;  and  that  they  will  support  the  govern- 
ment of  the  United  States  in  all  measures  warranted  by  the  former," 
and  to  maintain  the  union,  "it  pledges  all  its  powers."  Language  less 
calculated  to  rouse  resentment  could  not  be  used :  nor  were  the  resolutions 
addressed  to  the  people,  and  if  they  were,  Mr.  Mercer  said  they  would  not 
have  been  objected  to  by  him  on  that  ground.  If  the  people  were  not  to  be 
confided  in,  we  were  wretched  indeed.  In  whom  were  we  to  confide,  if 
not  in  the  people?  In  their  virtue  and  patriotism  were  all  his  hopes  placed. 
The  history  of  government  had  been  the  history  of  crime  and  usurpation. 
In  the  purity  of  administration  he  could  not  solely  confide.  The  people 
were  the  best,  and  the  only  defenders  of  their  liberties;  when  they  became 
ignorant  of  the  proceedings  of  their  own  governments;  when  public  virtue 
should  cease  to  be  their  ruling  principle,  their  liberties  would  experience 
the  same  fate,  which  those  of  other  nations  had  undergone :  power  would 
stand  in  the  place  of  the  Constitution.  He  hoped  no  arguments  derived 
from  the  probable  consequences  upon  the  people  of  adopting  the  resolu- 
tions, would  prevent  the  judgment  of  the  committee  from  being  calmly 
exercised  upon  them. 

The  right  of  the  state  government  to  interfere  in  the  manner  pro- 
posed by  the  resolutions,  Mr.  Mercer  contended,  yvas  clear  to  his  mind. 
He  asked,  what  were  the  rights  belonging  to  the  state  governments  prior 


42  DEBATE  ON  VIRGINIA  RESOLUTIONS. 

to  the  existence  of  the  federal  Constitution  1  They  were  those  which  be- 
long to  all  sovereign  and  independent  states.  They  were  perfect  and  com- 
plete.  The  federal  Constitution  derived  its  powers  from  the  people  and 
the  states,  and  could  give  none  but  what  had  been  previously  in  the  pos- 
session of  the  states  or  the  people,  and  by  them  delegated  to  the  general 
government.  It  would  not  be  said,  that  all  power  was  delegated  to  the 
general  government ;  though  it  had  indeed  been  improperly  said,  as  he 
should  attempt  to  show  before  he  took  his  seat,  that  the  powers  of  the 
federal  government  were  general.  He  should  attempt  to  show  they  were 
special,  and  that  none  but  what  were  specially  delegated  could  be  exer- 
cised. It  appeared  to  him,  that,  from  the  operation  of  the  two  separate 
governments  in  the  same  community,  there  resulted  three  species  of  rights 
to  be  exercised.  There  were  rights  which  the  "  federal  government  y; 
could  exclusively  exercise,  without  any  interference  on  the  part  of  the 
.  state  government ;  there  were  rights  which  could  be  exercised  by  each 
•**  government  at  the  same  time,  anotKere  were  rights  which  belonged  exclu- 
sively to  the  state  government."'  The  latter  embraced  all  which  had  not 
been  delegated  in  the  federal  Constitution  to  the  general  government,*or 
prohibited  to  the  states  by  that  instrument.  That  portion  of  power  which 
had  been  delegated  to  the  federal  government,  did  not  affect  the  sovereignty 
of  the  states"  over  the  reserved  rights ;  that  sovereignty  continued  entire; 
and  remained  as  to  the  reserved  rights,  what  it  had  been  with  respect  to 
all  the  rights,  before  the  federal  Constitution.  If  the  remaining  rights  are 
sovereign,  the  states  whose  sovereignty  is  invaded  by  any  act  of  the  gene- 
ral government  have  it  as  fully  in  their  power  to  defend  and  protect  these, 
as  they  would  have  had  to  defend  any  of  their  rights  if  attacked  by  a  fo- 
reign power,  before  the  general  government  had  a  being.  The  state  be- 
lieved some  of  its  rights  had  been  invaded  by  the  late  acts  of  the  general 
government,  and  proposed  "a  remedy  whereby  to  obtain  a  repeal  of  them. 
The  plan  contained  in  the  resolutions  appeared  to  Mr.  Mercer  the  most 
advisable.  Force  was  not  thought  of  by  any  one.  The  preservation  of 
the  federal  Constitution,  the  cement  of  the  Union  with  its  original  powers, 
was  the  object  of  the  resolutions.  The  states  were  equally  concerned,  as 
their  rights  had  been  equally  invaded ;  and  nothing  seemed  more  likely  to 
produce  a  temper  in  Congress  for  a  repeal,  than  a  declaration  similar  to 
the  one  before  the  committee,  made  by  a  majority  of  states,  or  by  several 
of  them.  The  states  had  the  power  of  communicating  together  in  pro- 
ducing amendments  to  the  federal  Constitution.  A  proposition  for  this 
purpose  had  been  presented  to  the  legislature,  during  the  present  session, 
from  the  state  of  Massachusetts,  and  would  be  acted  upon  before  their 
adjournment.  It  appeared  strange  that  the  states  might  communicate  to- 
gether to  amend  the  Constitution,  and  were  not  permitted  to  do  so,  in 
order  to  protect  the  same  when  amended ;  that  they  might  communicate 
together  when  they  chose  to  give  away  their  rights,  but  could  not  do  it 
when  their  reserved  rights  were  invaded.  The  reverse  of  this  Mr.  Mercer 
was  happy  in  believing  was  true.  The  opinion  contained  in  the  resolu- 
tions was  coeval  with  the  Constitution  itself,  and  had  been  maintained  by 
the  most  enlightened  commentary  which  had  been  produced  in  America 
upon  that  instrument  (he  alluded  to  a  collection  of  papers  written  under 


DEBATE  ON  VIRGINIA  RESOLUTIONS.  43 

the  signature  of  Publius,  in  the  state  of  New  York),  when  the  Constitution 
was  under  consideration,  and  generally  known  by  the  name  of  the  Fede- 
ralist. The  union  of  talents  exercised  in  the  production  of  this  work  had 
justly  entitled  it  to  the  attention'of  every  American  who  is  anxious  to  know 
the  true  meaning  of  the  federal  Constitution,  and  the  real  intent  of  its 
powers;  and  though  some  of  its  opinions  may  be  erroneous,  it  was  still 
the  best  authority  that  could  be  produced.  The  time  of  its  being  written 
was  extremely  favourable  to  the  impartiality  of  its  sentiments,  as  that  vin- 
dictive party  spirit  which  had  now  so  unhappily  extended  its  baneful  in- 
fluence to  almost  every  individual  in  the  community,  could  not  have  affect- 
ed its  supposed  authors,  one  of  whose  merits  had  so  justly  been  resounded 
a  few  days  ago  from  every  side  of  this  house.  This  authority,  when 
speaking  of  the  checks  which  the  state  governments  would  always  have 
upon  the  general  government,  and  of  the  little  probability  of  the  latter  en- 
grossing powers  unobserved,  uses  the  following  strong  and  decided  lan- 
guage: "If  the  majority  (in  the  general  government)  should  be  really 
disposed  to  exceed  the  proper  limits,  the  community  will  be  warned  of  the 
danger,  and  will  have  an  opportunity  of  taking  measures  to  guard  against 
it.  Independent  of  parties  in  the  national  legislature  itself,  as  often  as  the 
period  of  discussion  arrived,  the  state  legislatures,  who  will  always  be  not 
only  vigilant,  but  suspicious  and  jealous  guardians  of  the  rights  of  the  citi- 
zens against  encroachments  from  the  federal  government,  will  constantly 
have  their  attention  awake  to  the  conduct  of  the  national  rulers,  and  will 
be  ready  enough,  if  anything  improper  appears,  to  sound  the  alarm  to  the 
people,  and  not  only  to  be  the  voice,  but,  if  necessary,  the  arm  of  their 
discontent:"  vol.  1st,  page  166.  Their  sentiments  embraced  the  plan  pro- 
posed in  the  resolutions..  They  spoke  a  language  much  stronger  than 
any  which  these  would  be  found  to  contain.  We  do  not  wish,  said  Mr. 
Mercer,  to  be  the  arm  of  the  people's  discontent,  but  to  use  their  voice. 
The  same  authority  has  maintained  the  right  of  the  states  to  interfere  in 
the  manner  expressed  in  the  resolutions  submitted  to  the  committee,  in 
terms  still  more  applicable.  "  It  may  safely  be  received  as  an  axiom  in 
our  political  system,  that  the  state  governments  will,  in  all  possible  con- 
tingencies, afford  complete  security  against  invasion  of  the  public  liberty 
by  the  national  authority.  Projects  of  usurpation  cannot  be  masked  under 
pretences  so  likely  to  escape  the  penetration  of  select  bodies  of  men,  as  of 
the  people  at  targe.  The  legislatures  will  have  better  means  of  informa- 
tion. They  can  discover  the  danger  at  a  distance ;  and  possessing  all 
the  organs  of  civil  power,  and  confidence  of  the  people,  they  can  at  once 
adopt  a  regular  plan  of  opposition,  in  which  they  can  combine  all  the  re- 
sources of  the  community.  They  can  readily  communicate  with  each 
other  in  the  different  states  ;  and  unite  their  common  forces  for  the  protec- 
tion of  their  common  liberty  :"  vol.  1st,  page  176.  Here,  said  Mr.  Mercer, 
we  see  the  opinion  of  the  resolutions  so  clearly  admitted,  as  to  be  consi- 
dered a  "political  axiom  in  our  system"  The  right  of  two  different 
states  "  to  communicate  with  each  other,"  is  here  supported  by  the  best 
'defence  which  the  federal  Constitution  ever  received ;  not  only  this  right 
is  defended,  but  were  the  states  to  "adopt  a  regular  plan  of  opposition,  in 
which  they  should  combine  all  their  resources,"  this  authority,  addressed 


44  DEBATE  ON  VIRGINIA  RESOLUTIONS. 

to  the  people  at  the  time  the  Constitution  was  under  consideration,  would 
justify  the  measure.  But  no  such  wish  was  entertained  by  the  friends  of 
the  resolutions.  Their  object  in  addressing  the  states  is  to  obtain  a  similar 
declaration  of  opinion  with  respect  to  several  late  acts  of  the  general  go- 
vernment, which  seem  to  violate  some  of  the  most  invaluable  rights  se- 
cured by  the  charter  of  their  own  existence;  and  thereby  to  obtain  a  repeal 
of  measures  unconstitutional  in  their  nature,  and  hateful  in  their  tendency; 
measures  so  justly  obnoxious  to  the  people,  that  they  would  have  found 
few  advocates,  but  for  the  vain  pretence  of  their  being  necessary  to  defend 
us  against  the  attempts  of  France;  measures  that  have  divided  the  com- 
munity at  a  moment  when  union  of  sentiment  is  ardently  to  be  wished  for 
by  every  friend  to  the  interest  of  his  country. 

The  gentleman  from  Prince  George  had  introduced  the  opinions  of  a 
learned  writer  upon  the  law  of  nations,  to  prove  which  were  the  rights  of 
aliens.  Though,  Mr.  Mercer  did  not  believe  this  class  of  men  stood,  in  a 
foreign  country,  upon  the  narrow  ground  in  which  it  was  attempted  to 
place  them,  yet,  he  deemed  it  entirely  unnecessary  to  inquire  what  was 
the  nature  and  extent  of  their  rights ;  he  should  contend  that  the  federal 
government  possessed  no  power  over  aliens  in  time  of  peace;  and,  there- 
fore, whatever  power  a  sovereign  state  could  exercise  with  respect  to  them, 
under  the  general  law  of  nations,  that  power  belonged  to  the  state,  and 
not  to  the  general  government ;  the  rights  of  sovereignty  did  not  attach 
to  the  federal  government  in  all  their  extent:  it  was  sovereign  only  with 
respect  to  the  rights  which  it  could'  exercise  exclusively:  it  was  limited  in 
its  operation,  and  the  boundaries  of  its  authority  clearly  ascertained  ; 
unless,  therefore,  this  power  over  aliens  should  be  found  vested  in  the 
general  government  by  the  terms  of  the  Constitution,  he  could  not  admit 
it  to  be  derived  from  implication,  or  from  any  general  clause  in  that  in- 
strument. Implication  would  lead  us  into  an  endless  discussion.  The 
plain  sense  and  meaning  of  the  Constitution  should  be  our  guide.  In 
some  part  of  the  gentleman's  argument  he  admitted  the  limited  powers  of 
the  Constitution ;  in  others  he  certainly  advanced  opinions  destructive 
of  that  limitation.  To  show  that  the  powers  under  the  Constitution  were 
limited  and  special,  Mr.  Mercer ,  begged  leave  to  refer  to  the  Constitution 
itself.  In  the  eighth  section  and  first  article,  there  was  found  a  special 
enumeration  of  powers  ;  most  of  the^great  powers  of  Congress  were  here 
particularly  denned.  Those  which  they  had  a  right  to  exercise,  and  which 
were  not  in  this  section,  were  as  clearly  ascertained  in  other  parts  of  the 
instrument :  why  was  this  cautious  enumeration  of  powers  necessary,  ex- 
cept to  keep  Congress  within  the  strict  and  literal  meaning  of  the  Consti- 
tution, and  to  prevent  the  assumption  of  power  under  any  general  clause? 
It  was  intended  to  prevent  them  from  exercising  any  power,  but  what  was 
given.  If  opinions  cotemporaneous  with  the  original  discussion  of  the 
Constitution  in  Virginia,  can  serve  us  in  ascertaining  its  true  meaning, 
(and  they  certainly  ought,)  he  would  refer  gentlemen  to  the  debates  in  the 
Convention  of  this  state.  The  opponents  of  the  Constitution  were  appre- 
hensive, that  by  implication,  or  some  general  phrases,  Congress  might 
assume  powers  not  intended  to  be  conveyed.  The  advocates  of  that  paper 
declared,  in  every  day's  debate,  that  these  apprehensions  were,  without 


DEBATE  ON  VIBGINIA  RESOLUTIONS.  45 

foundation :  that  the  language  was  so  clear,  and  its  powers  so  well  de- 
fined, that  none  could  be  exercised  under  it  by  implication,  or  that  was 
not  found  upon  its  face.  Though  the  evidence  of  every  member  who 
wished  the  Constitution  ratified,  might  be  produced  upon  this  subject,  he 
would  mention  the  opinions  of  only  two  gentlemen  belonging  to  that  body. 
"  Mr.  John  Marshall  asked  if  gentlemen  were  serious  when  they  asserted 
that  if  the  state  governments  had  power  to  interfere  with  the  militia,  it  was 
by  implication.  If  they  were,  he  asked  the  committee  whether  the  least 
attention  would  not  show  they  were  mistaken:  each  government  was  to 
act  according  to  the  pmvers  given  it.  Would  any  gentleman  deny  this? 
He  demanded  if  powers  not  given  were  retained  by  implication?  Could 
any  man  say  so  ?  Could  any  man  say,  that  this  power  was  not  retained 
by  the  states,  as  iliey  had  not  given  it  away?  For,  does  not  a  power  re- 
main till  it  is  given  away  ?  The  state  legislatures  had  power  to  command 
and  govern  their  militia  before,  and  have  it  still,  undeniably,  unless  there 
be  something  in  this  Constitution  that  takes  it  away"  Though  .the 
limited  powers  of  the  Constitution  were  in  this  opinion  insisted  on,  there 
was  still  higher  authority.  It  was  the  instrument  of  ratification  adopted 
in  the  Convention  of  Virginia,  which  had  been  mentioned  by  the  gentle- 
man from  Caroline.  It  contained  the  opinion  of  the  Convention,  and  de- 
clares, "  that  every  power  not  granted,  remains  with  the  people  and  at  their 
will :  that,  therefore,  no  right  of  any  denomination,  can  be  cancelled, 
abridged,  restrained,  or  modified,  by  the  Congress,  by  the  Senate,  or 
House  of  Representatives,  acting  in  any  capacity,  by  the  President  or  any 
department  or  officer  of  the  United  States,  except  in  those  instances  in 
which  power  is  given  by  the  Constitution  for  those  purposes ;  and  that, 
among  other  essential  rights,  the  liberty  of  conscience  and  of  the  press, 
cannot  be  cancelled,  abridged,  restrained  or  modified,  by  any  authority  of 
the  United  States."  We  see  what  was  the  opinion  of  the  State  of  Virginia, 
wi-th  respect  to  the  powers  of  the  Constitution,  when  she  was  called  upon 
to  ratify  or  reject  it.  But,  to  remove  all  doubts,  immediately  upon  its 
going  into  operation,  certain  amendments  were  made,  among  which  is 
the  following :  ",The  powers  not  delegated  to  the  United  States  by  the 
Constitution,  nor  prohibited  by  it  to  the  states,  are  reserved  to  the  states, 
respectivelyjior  to  the  people."  This  amendment,  now  a  part  of  the 
Constitution,  ought  to  fix  the  real  extent  of  the  powers  of  Congress.  But, 
the  gentleman  was  not  satisfied  with  it,  because  the  word  expressly,  was 
not  to  be  found  there.  Mr.  Mercer  hoped  the  committee  would  not  believe 
this  single  term  essential  to  ascertain  the  limitation  of  power  under  which 
Congress  were  bound  to  act.  The*  words  of  the  amendment  were  general, 
and  conveyed  a  certain  meaning.  It  was  that  which  the  face  of  the  Con- 
stitution, in  its  original  form,  would  warrant,  which  cotemporaneous 
opinions  had  maintained,  and  which  the  Convention  of  Virginia  had  de- 
clared to  be  true.  It  .was  impossible  for  language  to  be  so  explicit  as  to" 
produce  a  clause  that  might  not  be  subject  to  similar  objections ;  for,  if 
this  term  had  been  used  in  the  amendment,  gentlemen  might  have  thought 
it  still  defective,  as  others  equally  strong  might  have  been  left  out.  He 
therefore  supposed,  as  these  evidences  ascertained  the  power  of  the  Federal 
Constitution  to  be  special,  and  as  no  power  over  aliens,  such  as  has  been 


46  DEBATE  ON  VIRGINIA  RESOLUTIONS, 

exercised  by  Congress,  in  the  law  so  generally  obnoxious,  had  been,  or  in 
his  opinion,  could  be  shown  to  exist  in  that  body,  the  law  itself  must  be 
considered  repugnant  to  the  Constitution,  and  as  invading  the  rights  of  the 
states. 

Many  of  the  remarks  of  the  gentleman  from  Prince  George,  were  in- 
tended to  show  the  expediency  of  the  law,  and  the  inconveniences  that 
might  arise  from  the  want  of  the  power  in  Congress  to  pass  it.  Mr. 
Mercer  considered  these  remarks  entirely  foreign  from  the  inquiry  before 
the  committee.  The  only  question  ought  to  be,  whether  it  was  constitu- 
tional or  not :  if  it  was  not,  in  his  opinion,  a  violation  of  the  Constitution, 
which  ought  to  be  held  sacred,  he  declared  that  he  would  not  at  this  time 
thus  publicly  deny  its  expediency*  But  there  would  be  no  period  so  criti- 
cal, as  to  justify  silence  upon  a  departure  from  the  Constitution.  It  might 
be  believed,  that  temporary  advantages  would  result ;  but  permanent  evil 
would  be  the  certain' consequence  :  for,  if  there  was  a  maxim  in  American  X 
politics,  it  must  be,  that  no  law  could  be  expedient,  which  was  unconstitu- 
tional. If  it  was  found  inconvenient  that  Congress  had  hot  this  power, 
the  remedy  was  plain :  perhaps  it  was  the  best  feature  in  the  instrument 
that  pointed  outthe  manner  in  which  itself  could  be  amended.  It  did  not 
consider  the  present  provisions  in  it  as  the  unalterable  effort  of  the  best 
reason,  but  left  them  to  the  operation  'of  time  and  experience,  by  which 
their  defects  might  be  unfolded:  when  these  appeared,  the  remedy  was  in 
amending  the  Constitution,  and  not  in  usurping  powers  by  constructions, 
so  highly  forced,  as  to  leave  its  meaning  entirely  uncertain ;  and  to  lay 
the  foundation  for  administering  the  government  upon  principles  unac- 
knowledged by  the  Constitution,  and  unknown  to  the  states  and  the  people 
at  the  time  of  its  adoption.  But  the  gentleman  had  supposed,  that  under 
the  aid  of  necessary  implication,  Congress  possessed  the  power  of  passing 
the  alien  friend  law ;  and  made  his  appeal  to  the  last  clause  in  the  eighth 
section,  which  said,  that  Congress  should  have  the  power  "  to  make  all 
laws  which  shall  be  necessary  and  proper  to  carry  into  execution  the  fore- 
going powers,  and  all  other  powers  vested  by  this  Constitution  in  the  go- 
vernment of  the  United  States,  or  in  any  department  or  officer  thereof." 
Mr.  Mercer  said,  this  clause  had  been  called  in  the  Convention  of  Virginia, 
by  the  opponents  of  the  Constitution,  the  sweeping  clause*  But  it  was 
evident,  it  referred  only  to  the  powers  expressly  "  vested"  in  Congress  by 
the  Constitution.  It  could  give  no  new  power.  It  would  be  absurd  to 
suppose,  that  after  a  special  enumeration  of  powers,  limited  by  the  terms 
of  the  grant,  that  any  general  expressions  could  so  operate,  as  to  produce 
an  increase  of  authority.  It  had  not  been  shown  to  his  satisfaction  how 
the  law  complained  of,  was  "  to  carry  into  execution"  any  power  vested 
by  the  Constitution  "  in  the  government  of  the  United  States,  or  in  any  de- 
partment or  officer  thereof."  Under  the  construction  that  had  been  given 
to  it,  it  involved  new  powers,  nowhere  to  be  found  delegated  in  that  instru- 
ment :  for  the  true  exposition  of  this  clause,  he  would  now  refer  to  the 
opinion  of  the  other  gentleman  in  the  Convention,  to  whom  he  had  alluded. 
Mr.  Madison,  speaking  of  this  clause,  said,  "  It  is  only  superfluity.  If  that 
latitude  of  construction,  which  he  (Mr.  Henry}  contends , for,  were  to  take 
place,  with  respect  to  the  sweeping  clause,  there  would  be  room  for  those 


DEBATE  ON  VIRGINIA  RESOLUTIONS,  47 

horrors.  But  it  gives  no  supplementary  power.  It  enables  them  to  exe- 
cute the  delegated  powers.  It  is  at  most  explanatory  ;  for  when  any  power 
is  given,  its  delegation  necessarily  involves  authority  to  make  laws  to  exe- 
cute it" 

"  With  respect  to  the  supposed  operation  of  what  was  denominated  the 
sweeping  clause,  the  gentleman,  he  said,  was  mistaken ;  for,  it  only  ex- 
tended to  the  enumerated  powers.  Should  Congress  attempt  to  extend  it 
to  any  power  not  enumerated,  it  would  not  be  warranted  by  the  clause." 
This  opinion  must  be  considered  as  the  just  onel  It  had  been  maintained 
by  the  writer  which  he  had  cited,  the  Federalist.  The  Constitution  itself 
warranted  the  truth  of  it ;  but,  there  ought  to  be  no  doubt  after  reading 
the  amendment,  which  had  already  been  stated.  If  the  power  exercised 
in  the  law,  was  not  enumerated,  neither  this,  nor  any  other  general  clause, 
could  give  it  to  Congress. 

The  gentleman  had  called  upon  the  committee,  to  show  in  what  part  of 
the  Constitution  the  powers  of  Congress,  with  respect  to  foreign  nations, 
were  stated.  Mr.  Mercer  hoped  he  did  not  mistake  his  remark,  for  it  was 
a  very  important  one.  If  it  was  true  that  these  great  powers,  certainly 
exercised  by  Congress,  were  not  vested  in  that  body  by  express  terms,  but 
were  derived  to  them  by  construction  or  implication,  the  deduction  that 
would  naturally  flow  from  such  a  truth,  would  be  fatal  to  the  Constitution. 
It  was,  if  powers  so  great  could  be  used,  without  being  specially  delegated, 
it  showed  the  extent  of  implication  ;  and  under  its  operation  other  powers 
equally  important,  and  among  them,  that  which  Congress  had  exercised 
over  aliens,  might  be  assumed,  but  such  a  position  is  destructive  to  the 
Constitution.  Mr.  Mercer  rejoiced  in  believing  it  could  not  be  supported 
by  any  argument  drawn  from  the  powers  of  Congress  over  foreign  rela- 
tions ;  for  none  were  more  expressly  delegated  than  these ;  he  begged 
leave  again  to  refer  to  that  instrument,  which  should  be  our  constant 
guide.  In  the  10th  section  of  first  article,  it  is  declared  that  "  no  state 
shall  enter  into  any  treaty,  alliance,  or  confederation."  And  that  "  no 
state  shall,  without  the  consent  of  Congress,  enter  into  any  agreement 
or  compact  with  another  state,  or  with  a  foreign  power,  or  engage  in  war, 
&c."  This  proved  that  all  power  with  respect  to  foreign  connexions  was 
taken  from  the  states.  It  was  not  among  their  reserved  rights ;  nor  could 
they  exercise  it  conjointly  with  Congress,  because  they  were  deprived  of 
it  by  negative  words  in  the  Constitution.  It  belonged  exclusively  to  the 
general  government.  To  show  this,  he  read  the  following  clauses  in  the 
Constitution  :  "  The  Congress  shall  have  power  to  regulate  commerce 
with  foreign  nations."  "To  establish  an  uniform  rule  of  naturalization." 
"  To  declare  war  and  grant  letters  of  marque  and  reprisal."  When 
speaking  of  the  powers  of  the  President,  it  says,  "  He  shall  have  power, 
by  and  with  the  advice  and  consent  of  the  Senate,  to  make  treaties,"  &c. 
"  And  shall  nominate,  and  by  and  with  the  advice  and  consent  of  the 
Senate,  shall  appoint  ambassadors,  other  public  ministers  and  consuls." 
"  He  shall  receive  ambassadors  and  other  public  ministers."  These  clauses 
embrace  all  the  great  objects  of  a  foreign  intercourse;  they  make  it  clear, 
that  the  powers  of  the  general  government  upon  this  subject,  are  expressly 
delegated,  and  depend  not  upon  nice  constructions  or  implication. 


48  DEBATE  ON  VIRGINIA  RESOLUTIONS. 

In  these  remarks,  Mr.  Mercer  said,  he  had  attempted  to  show  that  the 
federal  Constitution  was  a  limited  grant  of  power:  that  the  power  which 
Congress  had  exercised  in  the  case  of  the  alien  law,  had  been  nowhere 
delegated  to  them  by  that  instrument,  and  ought  not  to  be  considered 
within  their  reach,  from  implication.  That  if  Congress  did  not  constitu- 
tionally possess  the  power  over  aliens,  which  they  had  exercised,  the  exer- 
cising it  was  an  invasion  of  the  sovereignty  of  the  states ;  and  whenever 
this  took  place,  the  states  had  a  right  to  communicate  with  each  other,  in 
the  manner  contemplated  by  the  resolutions  now  before  the  committee. 
But  if  he  had  been  convinced  that  this  power  was  vested  in  Congress,  the 
manner  in  which  they  had  used  it,  was  equally  repugnant  to  the  Consti- 
tution, and  subversive  of  some  of  the  most  valuable  provisions  contained 
in  it.  It  was  as  necessary  they  should  preserve  the  distribution  of  powers 
actually  delegated,  according  to  the  mode  prescribed  in  the  Constitution, 
•as  it  was  for  them  not  to  assume  powers  which  had  never  been  delegated. 
It  was  as  necessary  that  one  department  of  the  government  should  not  be 
permitted  to  use  authority,  to  the  constitutional  exercise  of  which  only  the 
three  branches  were  competent,  as  that  the  whole  should  assume  powers 
which  neither  had  a  right  to  exercise.  The  objections  to  this  act  had  been 
so  often  urged,  and  the  public  attention  so  much  excited,  that  it  would  be 
useless  to  dwell  upon  them  at  this  time :  he  would  briefly  mention  the 
objections  which  he  felt  to  the  act,  even  if  Congress  had  the  power  over 
aliens  which  they  had  exercised.  His  first  was,  that  it  placed  in  the  hands 
of  the  President  an  union  of  authority,  which  by  the  principles  of  free 
government,  should  always  be  kept  separate  and  distinct.  It  gave  him  the 
right  to  exercise  legislative,  judicial,  and  executive  powers,  which  were  in- 
tended to  be  kept  apart  by  the  Constitution,  and  never  could  be  united  in 
the  same  individual,  or  in  the  same  department  of  government,  without 
producing  a  real  despotism.  To  prove  that  legislative  power  was  vested 
in  the  President  by  this  law,  he  asked  what  was  the  distinguishing  charac- 
teristic of  that  power,  or  the  highest  act  that  could  be  performed  by  it?  It 
was  to  prescribe  a  rule  of  conduct,  commanding  what  was  right,  and  pro- 
hibiting what  was  wrong.  What  was  the  rule  of  conduct  prescribed  to  the 
alien  by  this  law?  What  was  he  commanded  to  do,  and  what  to  avoid? 
There  was  no  rule  of  conduct  laid  down  in  the  law.  There  was  no  crime 
defined.  Even  the  President  was  not  required  to  say  what  the  alien's  duty 
should  be.  Everything  was  confined  within  his  own  breast.  The  class 
of  men  intended  to  be  involved  under  this  law,  could  not  know  they  had 
sinned,  until  the  punishment  was  upon  them.  If  he  then  prescribed  the 
rule  of  conduct  for  aliens,  he  also  had  the  right  under  the  law  to  judge 
when  that  rule  was  violated :  he  was  the  executive  department  of  the  go- 
vernment constitutionally,  and  the  duties  of  legislating  and  judging  were 
annexed  to  his  new  office  by  this  law.  The  second  objection  was,  that  it 
destroyed  the  trial  by  jury,  which  he  considered  was  extended  to  all  -per- 
sons by  the  Constitution.  The  terms  were  as  general,  and  as  comprehen- 
sive, as  language  could  make  them.  He  begged  leave  to  refer  to  them. 
"The  trial  of  all  crimes,  except  in  cases  of  impeachment,  shall  be  by  jury." 
"  No  person  shall  be  held  to  answer  for  a  capital  or  otherwise  infamous 
crime,  unless  on  a  presentment  or  indictment  by  a  grand  jury,  &c." 


DEBATE  ON  VIRGINIA  RESOLUTIONS.  49 

IC  Nor  be  deprived  of  life,  liberty,  or  property,  without  due  process  of  law." 
"  In  all  criminal  prosecutions,  the  accused  shall  enjoy  the  right  to  a  speedy 
and  public  trial,  by  an  impartial  jury,  &c.,"  "be  informed  of  the  nature 
and  cause  of  the  accusation:  to  be  confronted  with  the  witnesses  against 
him :  to  have  compulsory  process  for  obtaining  witnesses  in  his  favour  ; 
and  to  have  the  assistance  of  counsel  for  his  defence."  These  just,  humane, 
and  most  invaluable  of  all  privileges,  were  taken  from  the  alien :  his 
"liberty"  was  to  be  suspended  without  any  "grime"  being  defined,  which 
he  ought  to  avoid  ;  without  any  "  trial  by  jury,"  of  which  "  no  person"  is 
to  be  deprived  under  the  Constitution ;  there  was  no  "  information  of  the 
nature  and  cause  of  the  accusation"  to  be  communicated  to  him ;  he  was 
"  to  be  confronted  with  no  witnesses ;  counsel  could  not  be  heard  in  his 
favour  ;"  his  liberty  depended  upon  the  mercy  and  justice  of  an  individual. 
The  third  objection  was,  that  it  virtually  destroyed  the  right  of  the  states, 
under  the  ninth  section  of  the  first  article  of  the  Constitution ;  for  though 
the  states  might  admit  the  "  migration  or  importation"  of  such  persons  as 
they  might  think  proper  prior  to  a  certain  period,  it  was  to  little  purpose, 
if  the  President,  influenced  by  his  own  suspicions,  could  send  them  away. 
The  argument  of  the  gentleman  from  Prince  George,  seemed  to  relinquish 
the  point.  He  observed,  that  the  law  would  have  been  unconstitutional, 
if  it  had  been  a  permanent  one,  passed  prior  to  the  year  1808,  since  it 
would  then  defeat  this  section.  Mr.  Mercer  said,  he  could  not  see  how  its 
being  temporary,  would  prevent  the  same  effect  from  being  produced :  for, 
if  the  power  of  Congress  could  pass  such  a  law  for  two  years,  it  might  ex- 
tend to  the  year  1808.  If  they  possessed  the  right  to  originate  the  law, 
and  keep  it  in  force  for  any  term,  however  short,  they  could  certainly 
defeat  the  ninth  section  altogether ;  because,  as  often  as  the  period  arrived 
when  this  temporary  law  was  to  expire,  they  had  only  to  pass  it  again  for 
a  limited  time;  and  by  thus  keeping  it  temporary,  bring  about  the  year 
1808;  after  which  the  gentleman  supposed  the  right  would  be  in  Congress. 
The  law  being  only  a  temporary  one,  therefore,  could  not  possibly  prove 
it  to  be  constitutional. 

Much  had  been  said,  by  the  member  from  Prince  George,  respecting  the 
conduct  of  aliens,  and  the  dangers  that  were  to  be  apprehended  from  them. 
Mr.  Mercer  did  not  suppose  that  the  friends  of  the  resolutions  felt  it  their 
duty  to  defend,  or  to  blame  that  conduct,  whatever  it  might  have  been, 
without  having  ever  understood  any  acts  to  have  been  performed  by  that 
class  of  men  by  which  American  rights  had  suffered.  The  statement  of 
the  gentleman  might  be  true,  and  still  it  did  no"t  affect  the  question  before 
the  committee.  The  object  of  the  resolutions  was  not  to  defend  aliens, 
but  to  protect  the  Constitution,  which  had  been  violated  in  the  case  of 
these  men.  If,  under  the  intention  of  removing  dangerous  aliens,  the 
principles  of  that  instrument  would  be  openly  violated,  and  some  of  its 
wisest  provisions  set  aside,  the  same  might  take  place  with  respect  to  na- 
tive citizens.  If  it  was  infringed  upon  in  one  instance,  the  same  might 
happen  in  any  other. 

With  respect  to  the  sedition  law,  as  it  was  generally  called,  Mr.  Mercer 
said  he  would  not  tafce  up  the  time  of  the  committee  in  making  any  ob- 
servations upon  it.  He  was  willing  to  let  the  proof  of  its  unconstitutional 


50  DEBATE  ON  VIRGINIA  RESOLUTIONS. 

• 

quality  rest  upon  the  argument  of  the  gentleman  from  Caroline.  He  would 
only  say,  it  was  odious  in  his  sight.  It  was  certainly  unnecessary,  unless 
the  general  government  had  reason  to  doubt  the  virtue  and  patriotism  of 
the  people.  If  that  government  would  pursue  measures  compatible  with 
the  Constitution,  and  calculated  to  preserve  the  country  in  a  statejof  peace, 
and  not  hasten  that  unhappy  crisis  with  which  we  were  threatened,  when 
war  should  be  found  unavoidable,  every  citizen  would  be  ready  to  defend 
his  country's  rights  against  the  attempts  of  any  nation  upon  earth.  ,Mr. 
Mercer  -believed,  if  it  had  not  been  for  the  unfortunate  difference  between 
America  and  France,  there  would  have  been  few  voices  ready  to  approve 
of  several  of  the  late  acts  of  the  general  government.  That  difference  had 
been  made  the  pretext  for  exercising  power  in  a  .manner  which,  two  years 
past,  would  have  been  universally  condemned.  He  hoped  the  committee 
would  distinguish  between  the  aggressions  of  France,  and  the  operations 
of  our  own  government.  The  alarm  of  foreign  invasion,  created  by  go- 
vernment, was  not  a  modern  thing.  When  power  wished  to  encroach, 
the  same  had  been  excited  in  every  age  and  country.  At  this  time,  two 
instances  occurred  to  him.  When  Charles  the  Seventh  of  France  wished  to 
establish  a  standing  army  in  that  country,  he  told  the  people  it  was  neces- 
sary to  be  ready  against  invasions  from  England.  But  when  all  danger 
was  removed,  the  army  was  kept  up,  and  afflicted  the  nation  for  centu- 
ries. Charles  was  the  first  .king  of  France  who  levied  a  tax  without  the 
consent  of  the  states-general.  When  Cardinal  Ximenes  introduced  a 
standing  army  into  Spain,  the  people  were  informed  it  was  necessary  to 
protect  them  against  the  invasion  of  the  Moors  from  Africa;  out  when 
these  were  expelled  the  country  and  their  power  destroyed,  the  army  was 
continued.  History  afforded  many  simila^r  instances.  It  proved,  that  the 
moment  for  power  to  enlarge  its  privileges  was  that  of  public  agitation  and 
alarm ;  he  would  make  no  inferences  with  a  view  of  applying  them  to  the 
general  government.  Every  gentleman  in  the  committee  might  make  his 
own  deductions.  Mr.  Mercer  concluded  by  observing,  that  he  should  vote 
for  the  resolutions,  unless  arguments  could  be  offered  to  prove  to  his  satis- 
faction, that  the  acts  complained  of  were  constitutional. 

Mr.  PQPE  arose  next,  and  made  several  general  observations  in  answer 
to  those  which  had  fallen  from  Mr.  George  K.  Taylor^  respecting  the  ne- 
cessity of  deliberation  before  decision  in  favour  of  the  alien  law,  and  con- 
cerning Volney  and  Talleyrand.  He  then  proceeded  to  observe,  that  as 
to  Talleyrand,  the  gentleman  from  Prince  George  was  not  correct  as  to 
what  he  had  related  of  him ;  but  besides,  that  he  had  not  related  the  whole 
story.  He  had  represented  him  to  be  a  great  rascal  indeed,  and  a  very 
great  rascal  he  himself  would  acknowledge  he  was.  But  that  he  would 
still  give  them  a  further  account  of  that  Mr.  Talleyrand,  as  true  as  that 
which  the  gentleman  from  Prince  George  had  related.  He  then  proceeded 
to  mention  that,  in  the  course  of  Talleyrand's  stay  in  America,  he  had 
been  for  some  time  much  countenanced  by  some  of  the  conspicuous  cha- 
racters in  New  York,  of  whom  he  particularly  mentioned  the  gentleman 
who  never  broke  a  command,  who  never  disturbed  the  quiet  or  repose  of 
any  family ;  that  gentleman  who  inviolably  kept  the  sacred  vow  he  made 


DEBATE  ON  VIRGINIA  RESOLUTIONS.  51 

to  his  bride  on  the  day  of  marriage.  But  as  soon  as  these  gentlemen  dis- 
.covered  his  political  opinions  to  be  different  from  what  they  supposed 
them  to  be  when  they  admitted  him  into  their  society,  they  instantly  broke 
off  all  communication  with  him,  and  ever  afterwards  reviled  and  persecu- 
ted him.  He  made  some  observations  respecting  Volney ;  and  then  asked 
how  the  gentleman  from  Prince  George  had  found  out  the  story  which  he 
had  related  of  Volney,  when  Porcupine  or  Goodloe  Harper  never  could? 
Perhaps  he  had  learnt  it  from  Billy  Wilcox  ;  and  who  was  he  ?  A  mere 
automaton.  He  could  say  this — he  could  say  that — anything  or  nothing. 
He  was  directed  altogether  by  the  breaker  of  the  matrimonial  vow.  The 
gentleman  from  Prince  George  had  spoken  of  Frenchmen  sneaking  away. 
But  sneaking  as  they  were,  he  said,  he  believed  all  Europe  sneaked  before 
them.  However,  he  said,  he  was  no  champion  for  the  French,  any  more 
than  for  the  British.  He  thought  we  had  no  business  with  either  of  them. 
He  then  spoke  of  British  aggressions  upon  our  commerce.  But  these,  he 
said,  were  not  felt  by  the  executive  of  the  United  States,  as  well  as  many 
of  its  citizens.  He  then  complimented  Mr.  George  K.  Taylor  upon  his 
talent  in  moving  the  passions.  He  had  exercised  that  talent  so  effectually 
a  session  or  two  before,  as  to  draw  tears  from  the  members  of  that  house, 
(alluding  to  the  speech  delivered  in  favour  of  the  new  criminal  law,)  and 
he  himself  must  confess,  indeed,  that  the  gentleman  had,  on  the  subject 
then  before  them,  dealt  more  in  pathos.than  in  argument.  He  then  asked 
why  the  gentleman,  when  reviling  Genet,  did  not  say  something  of  Listen 
too  ?  He  believed  that  he  (Listen)  had  done  us  as  much  harm  as  ever 
Genet  did.  As  a  proof,  he  instanced  the  Spanish  transaction.  But  when 
that  was  stated  to  that  great  man,  Mr.  Pickering,  he  said  that  we  were  to 
pay  no  kind  of  credit  to  it,  for  he  was  satisfied  that  our  good  allies,  the 
British,  did  not  intend  to  injure  us.  The  gentleman  from  Prince  George,, 
he  said,  had  introduced  a  damsel,  and  that  was  the  damsel  of  liberty. 
When  he  had  done  so,  he,  (Mr.  Pope,)  cold  as  his  blood  was,  confessed 
that  he  was  seized  with  an  ecstacy.  But  when,  at  the  same  time,  the 
gentleman  would  not  permit  that  damsel  to  remain  within  these  walls,  he 
acknowledged  that  his  feelings  were  very  much  wounded  indeed.  For  he 
(Mr.  Pope),  was  fond  of  all  damsels,  but  particularly  so  of  the  damsel  of 
liberty.  And  if  he  were  so,  cold  as  his  blood  was,  what  might  they  not 
expect  from  that  young,  athletic  gehtleman,  whose  warmth  of  blood  was 
so  plainly  visible.  The  same  gentleman,  he  said,  had  also  dwelt  upon 
the  Saint  Domingo  horrors.  The  alien  law,  he  (Mr.  Pope)  said,  had 
not  removed  them.  He  believed  all  the  emigrants  from  that  place  were 
aristocrats :  but  they  had  not  been  removed.  The  gentleman  had  also 
mentioned  the  determinations  of  the  other  states.  As  well  as  he  could 
recollect,  he  said,  he  conceived  that  such  determinations  extended  only  to 
an  approbation  of  the  measures  of  the  Executive  in  regard  to  the  nego- 
tiation with  France.  But,  be  they  what  they  would,  we  -were  not  bound 
to  follow  their  example.  Kentucky  had  differed  from  them.  He  asked 
who  had  knocked  at  the  doors  of  the  aristocratic  Senate  of  the  United 
States  but  Virginia  ?  She  had  been  the  chief  means  of  opening  them.  In 
that  instance,  then,  she  had  weight.  He  wished,  therefore,  that  on  this 
occasion  they  should  do  what  they  thought  righK  That,  too,  might  pro- 


52  DEBATE  ON  VIRGINIA  RESOLUTIONS. 

bably  have  weight.  If  it  should  not,  they  would  at  least  discharge  their 
duty.  At  any  rate,  he  thought  the  determination,  according  to  the  reso- 
lutions which  they  were  about  to  make,  would  not  lead  to  war,  as  was 
apprehended ;  and  therefore  they  might  safely  agree  to  pass  them.  How- 
ever, he  said,  he  did  not  feel  himself  so  rigidly  attached  to  the' resolutions, 
but  that  he  would  be  willing  to  agree  to  any  modification  of  them  to 
accommodate  gentlemen,  provided  the  substance  of  them  should  be  so 
retained  as  to  go  to  declare  the  laws  of  Congress  under  their  considera- 
tion, unconstitutional. 

Mr.  JOHN  ALLEN  arose  nextj  and  said  he  was  not  accustomed  to  make 
apologies  for  anything  he  wished  to  say  in  this  house,  nor  should  he  do  so 
in  the  present  case;  the  subject  was  of  too  much  importance  to  require 
any.  And,  notwithstanding  his  ill  state  of  health,  he  rose  to  give  his 
feeble  aid  in  favour  of  the  wounded  daughter  of  liberty.  In  deciding  on 
a  constitutional  question,  he  did  not  expect  that  the  understanding  was  to 
be  banished,  and  the  passions  only  left  to  be  their  guide.  But,  he  found 
that  the  gentleman  from  Prince  George,  through  the  whole  of  his  lengthy 
harangue,  relied  solely  on  the  force  and  effect  of  the  latter.  That  gentle- 
man informed  them  that  he  should  confine  Jiis  observations  to  the  alien  law, 
and  attempt  to  prove  it  constitutional.  How  did  he  do  this?  By  describ- 
ing, in  the  most  terrific  colours,  the  conduct  of  the  French  towards  us, 
and  other  nations  ;  and  then  asserting,  that  the  alien  law  was  made  to 
protect  us  from  the  French.  But,  before  the  gentleman  indulged  himself 
in  his  description  of  the  cruelties  and  aggressions  committed  by  the 
French,  he  should  have  proved  that  this  law  related  only  to  that  nation. 
But  it  clearly  was  not  so.  It  extends  to  all  nations  alike,  and  without 
discrimination.  The  law  need  only  be  read  to  prove  the  truth  of  this 
assertion. 

Unless,  then,  it  appeared  that  we  were  threatened  with,  or  had  danger 
to  apprehend  from,  all  the  nations  on  earth,  that  law  could  not  be  justified, 
even  by  the  gentleman's  own  arguments.  The  gentlemen  had  further 
observed,  that  if  this  law  had  been  permanent,  it  would  be  unconstitu- 
tional ;  but,  if  temporary,  it  would  not.  Mr.  Allen  said,  in  his  opinion, 
there  was  no  difference  between  the  cases.  He  could  not  discover  how  a 
clause  in  a  law  declaring  that  it  should  expire  at  a  particular  period,  could 
make  the  law  constitutional.  But,  the  gentleman  did  not  appear  to  rely 
much  on  that  argument ;  only  that  it  gave  him  an  opportunity  of  return- 
ing again  to  his  favourite  theme,  a  description  of  French  cruelties.  But, 
said  the  gentleman,  the  admission  of  aliens  in  a  country  was  a  matter  of 
favour,  and  not  of  right.  But,  Mr.  Allen  averred,  that  the  admission  of 
alien  friends  into  a  country  was  not  a  matter  of  favour ;  and  even  if  it 
were,  when  they  were  in  a  country  they  were  entitled  to  certain  rights, 
which  he  enumerated,  and  which,  he  said,  were  derived  to  them  from  the 
laws  of  nature,  nations,  and  humanity.  The  gentleman  admitted  that  an 
alien  could  not  bef  deprived  of  life  or  property  without  a  trial,  and  that 
by  jury.  If  so,  surely  they  should  not  be  deprived  of  their  liberty  with- 
out trial,  and  that  too  by  jury.  But,  perhaps,  in  these  modern  days,  life 
and  property  only  are  to  be  held  sacred,  while  liberty  is  to  be  exposed  to 
the  whim  or  caprice  of*  a  single  man.  If,  indeed,  this  be  the  case,  and 


DEBATE  ON  VIRGINIA  RESOLUTIONS.  53 

liberty  is  considered  of  less  value  than  property,  then  the  argument  of 
the  gentleman  should  have  some  weight.  But,  we  are  taught  by  the  Con- 
stitution to  rank  liberty  next  to  life.  If,  therefore,  an  alien  cannot  be 
deprived  of  his  property  without  trial  by  jury,  he  certainly  should  not  be 
deprived  of  his  liberty  without  the  same  kind  of  trial.  On  that  account, 
then,  he  said,  the  law  was  apparently  unconstitutional.  But  suppose,  he 
said,  it  was  absolutely  necessary  to  provide  by  law  for  sending  aliens  out 
of  this  country,  who  had  the  power  to  do  so  ?  Congress,  or  the  states  ?  He 
declared  that  the  states  had.  He  read  the  first  clause  of  the  ninth  section 
respecting  the  migration  of  persons  prior  to  the  year  1808,  as  proof  of 
the  assertion.  But,  even  if  Congress  had  such  a  power,  they  had  no 
right  to  vest  it  in  the  President,  for  reasons  that  had  already  been  given, 
and  that  were  too  apparent  not  to  be  understood.  He  then  proceeded 
to  point  out  the  danger  of  placing  too  much  power  in  the  hands  of  the 
Executive.  He  stated  instances  of  the  unhappy  effects  proceeding  from 
it  in  Britain ;  agd  was  afraid  we  had  much  danger  to  apprehend  from  a 
desire  in  Congress  to  increase  executive  power.  This  law,  vesting  in  the 
President  such  enormous  powers,  the  gentleman  from  Prince  George 
observed,  was  made  for  the  purpose  of  getting  rid  of  two  individuals,  and 
as  they  had  sneaked  out  of  the  country,  there  was  no  farther  necessity 
for  the  law.  To  what  extremity,  said  Mr.  Allen,  must  the  United  States 
have  been  reduced.  How  must  they  be  degraded,  when  we  are  informed 
that  it  was  necessary  to  make  the  President  absolute  tyrant  over  perhaps 
a  million  of  people,  to  get  rid  of  two  men. 

But  it  was  urged  as  an  objection  to  the  adoption  of  the  resolutions  under 
consideration,  that  the  people  were  the  proper  tribunal  to' decide  upon  the 
constitutionality  of  the  laws,  and  that  they  would  shortly  decide  the  ques- 
tion at  the  next  election.  Mr.  Allen  contended,  that  was  not  a  proper 
mode  for  the  decision  of  such  a  question,  for  that  the  people  often  voted 
from  personal  or  local  attachments ;  and  that  they  were  not  always  ap- 
prised of  the  opinions  of  the  different  candidates ;  and  he  instanced  his 
own  district  as  proof  of  the  latter  assertion.  But,  he  said,  if  this  was  a 
proper  mode  of  deciding  this  question,  he  believed  there  was  no  doubt  how 
the  people  would  determine.  And  this  house,  by  "the  re-election  of  a 
senator  of  the  United  Slates  the, other  day,  had  already  decided  the  ques- 
tion. Mr.  Allen  then  concluded  by  making  some  general  observations  on 
the  dangerous  consequences  of  deriving  powers  from  implication ;  and 
said,  that  he  at  that  moment  experienced  too  much  bodily  pain  to  be. able 
to  proceed  further.  '  . 

On  motion  of  Mr.  Magill,  the  committee  then  rose,  the  chairman  reported 
progress,  asked,  and  had  leave  to  sit  again. 


IN  THE  HOUSE  OF  DELEGATES, 
Monday,  December  17,  1798. 

The  House  resolved  itself  into  a  committee  of  the  whole  house,  on  the 
state  of  the  commonwealth,  Mr.  Brackenridge  in  the  chair,  when  Mr. 
John  Taylors  resolutions  being,  still  under  consideration,  / 


54  DEBATE  ON  VIRGINIA  RESOLUTIONS. 

MR.  BARBOUR  arose,  and  observed,  that  being  a  young  man,  he  did  not 
intend  to  have  troubled  the  committee  with  any  remarks  upon  the  subject 
under  discussion,  but  the  solicitude  he  experienced  had  impelled  him  for- 
ward.    He  observed,  that  the  moment  on  which  he  arose,  might  be  called 
the  first  of  his  political  existence,  and  yet  in  that  moment  he  was  called 
upon  to  decide  a  question,  in  which,  not  only  his  own  fate  as  a  politician, 
but  the  welfare  of  his  country  was  materially  involved.     Mr.  Barbour 
.     asked,  what  must  be  the  sensations  of  a  young  man  the  first  instant  he 
stepped  on  the  theatre  of  public  life,  to  be  called  on  to  act  a  part,  in  which 
such  important  consequences  are  implicated  ?    He  observed,  he  experienced 
those  sensations  to  an  eminent  degree.     But  having  formed  a  rule,  by 
which  he  meant  to  be  governed  in  his  political  career,  which  was,  to  pur- 
sue the  line  of  conduct  his  judgment  dictated  as  the  most  proper,  he  would 
announce  to  the  committee,  and  through  the  committee  to  the  world,  the 
motives  which  actuated  him  to  give  the  vote  he  was  about  to  pronounce, 
which  would  be  in  favour  of  the  adoption  of  the  resolutions.    He  observed, 
it  had  been  remarked  by  every  gentleman,  whether  pro  or  con,  that  the 
event  of  the  present  discussion  was  important.     He  begged  leave  to  add 
his  testimony  likewise  to  the  importance  of  the  subject.     And  he  believed 
he  should  not  use  language  too  strong,  was  he  to  assert,  that  in  the  pro- 
ceedings of  this  Legislature  might  be  read  the  destinies  of  America  :  for 
issue  was  joined  between  monarchical  principles  on  the  one  hand,  and 
republican  on  the  other ;  and  they  were  the  grand  inquest  who  were  to 
deterrtiine  the  controversy.     For  should  so  important  a  state  as  Virginia 
sanction  the  measures  complained  of  in  the  resolutions,  (which  she  would 
do  if  the  resolutions  should  be  rejected,)  it  would  become  a  step-stone  to 
.   farther  usurpation,  until  those  great  rights,  which  are  guaranteed  by  nature 
and  the  Constitution,  will  be  destroyed  one  by  one,  and  a  monarchy  erected 
upon  the  ruins  thereof.    But  on  the  contrary,  if  she  discountenanced  those 
measures,  (as  she  would  do  by  the  adoption  of  the  resolutions,)  and  could 
obtain  the  co-operation  of  the  sister  states,  it  might  overawe  tyranny,  for 
tyranny  in  embryo  was  timid.     He  asked,  could  it  be  necessary,  to  con- 
jure the  members  of  the  committee  to  be  tremulously  alive  to  the  import- 
ance of  the  subject,  and  viewing  it  free  from  prepossessions,  should  give 
that  opinion,  which  would  redound  most  to  their  own  fame  and  eventuate 
f  in  the  welfare  of  their  country.    He  then  read  the  resolutions,  and  observed, 
the  gentleman  from  Prince  George  had  remarked,  that  those  resolutions 
invited  the  people  to  insurrection  and  to  arms.     But  Mr.  Barbour  said,  if 
he  could  conceive  that  the  consequence  foretold  would  grow  out  of  the 
measure,  he  would  become  its  bitterest  enemy,  for  he  deprecated  intestine 
commotion,  civil  war,  and  bloodshed,  as  the  most  direful  evils  which  could 
befall  a  couniry,  except  slavery.     A  resort  to  arms  was  the  last  appeal  of 
an  oppressed  and  injured  nation,  and  was  never  made  but  when  public 
servants  converted  themselves,  by  usurpation,  into  masters,  and  destroyed 
rights  once  participated  ;  and  then,  it  was  justifiable.     But  he  observed, 
the  idea  of  that  same  gentleman  was  in  concert,  as  would  appear  by  re- 
ference to  a  leading  feature  in  the  resolutions,  which  was,  their  being 
addressed  not  to  the  people,  but  to  the  sister  states;  praying,  in  a  pacific 
way,  their  co-operation  in  arresting  the  tendency  and  effect  of  unconstitu- 


DEBATE  ON  VIRGINIA  RESOLUTIONS.  55 

tional  laws.  He  observed,  it  had  been  said  by  some  gentlemen  that  they 
admitted  the  unconstitutionally  of  the  laws,  and  yet  they  would  vote 
against  the  resolutions,  for  that  the  subject  exclusively  bejonged  to  the 
people,  and  if  their  servants  had  violated  their  trust,  they  ought  to  substi- 
tute others.  In  answer  to  this,  Mr.  Barbour  observed,  that  doctrine  like 
this  was  pregnant  with  every  mischief.  For  once  admit,  said  he,  that 
the  states  have  no  check,  no  constitutional  barrier  against  the  encroach- 
ment of  the  general  government,  we  should  thereby  lessen  that  weight  to 
which  the  state  governments  are  entitled  in  the  political  machine,  which, 
in  America,  is  a  complex  one.  We  should  thereby  destroy  those  checks 
and  balances,  which  are  the  sine  qua  non  of  their  mutual  existence  and 
welfare.  And  the  consequence  then  would  be,  that  instead  of  harmony 
and  symmetry  which  has  hitherto  prevailed,  chaos,  confusion,  and  all  the 
evils  incident  to  that  situation,  would  be  the  inevitable  result.  In  theory 
this  doctrine  is  alarming,  but  fortunately  for  the  liberties  of  America,  when 
it  comes  to  be  tried  by  the  rules  of  reason  and  sound  argument,  it  is  found 
monstrous  and  absurd,  and  therefore  its  advocates  must  be  few.  He 
observed,  that  he  would  undertake  to  demonstrate  that,  although  the  people 
possessed  the  right  of  excluding  those  who  advocated  the  obnoxious  mea- 
sures, and  he  hoped  would  exercise  the  right,  yet  the-  state  legislatures 
not  only  had  a  concurrent  right,  but  were  equally  bound  to  exercise  that 
*  right.  ^He  asked,  who  were  the  parties  that  formed  the  compact?  Were 

y  they  not  the  J^eople  and  the  states  ?  If  it  had  been  formed  exclusively  by 
the  people,  he  supposed  a  majority  of  the  people  would  have  been  sufficient 
to  have  confirmed  the  compact.  But  what  was  the  fact?  Did  not  the 
Constitution  require,  that  the  consent  of  nine  of  the  states  shall  be  an  in- 
dispensable preliminary  to  its  adoption?  Again,  did  it  not  permit  three- 
fourths  of  the  legislatures  to  alter  the  Constitution,  without  the  intervention 
of  the  people  ?  And  cannot  the  states  admit  new  parties  to  the  compact, 
to  wit,  by  the  erection  of  new  states?  Again,  are  not  the  state  legisla- 
tures to  the  Senate,  what  the  people  are  to  the  Representatives?  And  if 
the  latter  possess  the  power  of  censure  and  discharge  (which  as  yet  no 
gentleman  would  deny),  must  it  not  follow  by  a  parity  of  reasoning,  that 
the  former  possess  the  same  power  relative  to  the  body  elected  by  them- 
selves ?  Again,  .the  President  is  elected  by  electors,  who,  represent  the 
states  as  well  as  the  people  ;  for  the  number  of  electors  is  not  in  propor- 
tion to  the  number  of  the  people  alone,  but  the  states  as  well  as  the  people: 
for  example,  the  state  of  Delaware  has  three  electors,  when  it  is  entitled 
to  but  one  representative  ;  whereas  Virginia  has  only  twenty-one  electors 
when  she  is  entitled  to  nineteen  representatives.  It  must  follow,  then,  as  an  -j. 

•V    incontrovertible  deduction,  that  the  states  are  parties  to  the  compact,  and 
/being  parties,  if  the  compact  was  violated  (as  it  was  violated)  the  states  have 
/  the  right,  and  ought  to  exercise  it,  to  declare  that  those  proceedings,  which 
are  an  infringement  upon  the  Constitution,  are  not  binding.     The  state 
legislatures  being  the  immediate  representatives  of  the  people,  and  conse- 
quently the  immediate  guardians  of  their  rights,  should  sound  the  tocsin 
of  alarm  at  the  approach  of  danger,  and  should  be  the  arm  of  the  people 
to  repel  every  invasion.     If,  said  he,  the  alien  and  sedition  laws  are  un- 
constitutional, they  are  not  law,  and  of  course  of  no  force.     For  what  are 


56  DEBATE  ON  VIRGINIA  RESOLUTIONS. 

the  necessary  ingredients  to  the  Constitution  and  the  force  of  a  law  ?  It 
was  not  only  essential  they  should  receive  the  sanction  of  the  constituted 
authorities,  but  the  act  itself  must  be.  in  unison  with  the  Constitution  ;  for, 
if  an  agent  should  transcend  his  limited  authorities,  he  would  be  guilty  of 
usurpation;  and  all  usurpation  being  founded  in  wrong,  whatever  has  that 
only  for  its  support,  must  be  void.  This  being  the  case,  the  legislature 
would-be  guilty  of  misprision  of  treason  against  the  liberties  of  their  con- 
.stituents  if  they  did  not  denounce  the  violations  offered  to  the  Constitution 
through  the  medium  of  the  alien  and  sedition  laws.  He  observed,  it  re- 
mained for  him  to  show,  that  the  laws  alluded  to,  were  unconstitutional. 

The  worthy  gentleman  from  Caroline  having  proven,  in  a  clear  and 
perspicuous  manner,  the  unconstitutionally  of  the  sedition  law,  and 
delineated,  in  masterly  and  eloquent  language,  the  consequences  of  that 
act,  which  is  entitled  to  the  infamous  pre-eminence  in  the  scale  of  guilt, 
and  as  no  gentleman  had  undertaken  its  defence,  Mr.  Barbour  said,  that 
his  remarks  would  be  confined  to  the  alien  law  alone.  And,  in  order  to 
;'  ascertain  whether  this  law  was  constitutional  or  not,  reference  must  be  had 
>  to  the  nature  of  the  Constitution.  The  government  must  be  either  limited 
|  or  unlimited.  If  the  latter,  it  was  omnipotent,  like  the  Parliament  of  Great 
Britain,  and  was  adequate  to  the  purpose  of  passing  any  law,  however 
impolitic,  absurd  or  dangerous  it  might  be  to  the  liberties  of  the  people. 
But,  if  it  were  limited,  (which  was  a  principle  he  supposed  so  clear,  that 
to  consume  the  time  of  the  committee  in  proving  it,  would  be  a  superero- 
gation,) it  would  remain  then  to  be  inquired,  whether  in  the  limited  power 
granted,  a  power  be  given  to  pass  a  law  like  the  one  now  under  discussion, 
or  not.  He  observed,  that  to  comprehend  the  nature  of  the  Constitution 
of  the  general  government,  it  might  not  be  unimportant  to  recur  to  the 
political  situation  of  America,  prior  to  the  adoption  of  the  federal  govern- 
ment. In  1776,  the  thirteen  United  States,  then  the  colonies  of  America, 
after  having  been  lacerated  to  the  midriff,  by  the  vulture  fangs  of  British 
persecution,  threw  off  their  colonial  subjugation,  and  took  a  stand  among 
the  nations  of  the  earth.  At  this  time,  there  were  thirteen  independent 
*.&  £$  sovereignties  tied  together  by  the  feeble  bands  of  the  articles  of  confedera- 
"  *:  |  tion.  So  long  as  the  pressure  of  external  danger  was  felt,  so  long  the 
bond  of  union  was  found  sufficiently  strong.  So  long  as  all  jealousies  and 
rivalships  were  sacrificed  on  the  altar  of  public  good,  the  defects  of  that 
system  were,  in  some  measure,  concealed.  But,  so  soon  as  the  pressure 
of  foreign  invasion  was  removed,  so  soon  it  was  discovered  that  the 
system  of  union  created  by  the  confederation,  was  inadequate  to  the  sub- 
lime purposes  for  which  it  was  intended.  The  people  of  America  saw 
and  deplored  the  situation  with  which  they  were  menaced ;  and  the  Vir- 
ginia Legislature,  sensible  of  the  jeopardy  to  which  their  well  earned  liber- 
ties were  exposed,  were  the  first  to  recommend  a  reformation  in  the  compact 
by  which  the  states  were  connected,  notwithstanding  the  senseless  yell 
and  malicious  calumnies  with  which  certain  hireling  papers  to  the  east 
teem,  of  a  disposition  in  this  state  to  shake  off  the  union.  Influenced  by 
this  spirit,  the  convention  met  in  the  year  1786,  in  Annapolis,  but  broke 
up  without  doing  any  thing  effectual.  In  the  year  1787,  the  convention 
which  met  in  Philadelphia,  gave  birth  to  the  Federal  Constitution.  The 


DEBATE  ON  VIRGINIA.  RESOLUTIONS.  57 

object  of  the  general  government  ex  vi  termini,  must  be  for  general  pur- 
poses ;  and  the  powers  necessary  to  carry  those  purposes  into  effect,  were 
yf  expressly  defined  ;  and  it  was  the  sense  of  the  American  people,  cotempora- 
neous  with  the  adoption  of  the  general  government,  when  the  attributes  and 
qualities  of  that  government  were  best  .understood,  that  all  powers  not 
granted  were  retained.  As  an  evidence  of  which,  let  reference  be  had,  he 
said,  to  the  twelfth  amendment  of  the  Federal  Constitution,  which  expressly 
declares,  that  all  powers  not  granted  to  the  general  government,  were 
retained  to  the  states,  or  the  people,  respectively.  It  was  then  urged,  (with 
propriety  too,  as  the  sequel  has  evinced,)  that  the  Federal  Constitution  was 
defective,  in  cpnsequence  of  its  wanting  a  bill  of  rights.  It  was  answered 
by  the  advocate*  of  the  Constitution,  (amongst  whom  was  Mr.  Lee  of 
Westmoreland,  who  now  displayed  great  zeal  in  support  of  administration, 
and  consequently,  amongst  the  friends  of  administration,  should  have  some 
weight,)  that  the  Constitution  was  belter  without,  than  with  a  bill  of  rights  ; 
for,  if  there  had  been,  (Mr.  Lee  observed,)  an  enumeration  of  particular 
rights,  with  the  friends  to  forced  construction  there  would  have  been  a 
claim,  as  residuary  legatee,  to  all  rights  not  expressly  retained;  but  in 
the  present  government,  there  were  only  particular  powers  granted,  and 
consequently,  all  powers  not  granted,  are  retained  to  the  states,  or  the 
people,  respectively  :  a  doctrine  which  he  (Mr.  Harbour,}  observed  before, 
had  been  recognised  in  the  twelfth  amendment  to  the  Constitution.  Mr. 
Barbour  then  observed,  that  he  having  shown  that  the  government  could 
exercise  no  power  but  what  was  specifically  enumerated,  it  behooved  the 
authors  or  supporters  of  the  law  to  show  that  the  power  of  making  a  law 
like  the  one  which  was  now  the  subject  of  discussion,  was  designated  in 
thejjst  of  specific  powers.  If  they  could  not  show  it,  it  must  follow,  it 
was  an  usurpation  of  power  not  warranted  by  the  Constitution.  To  ascer- 
tain the  truth  upon  this  subject,  which  in  argument  was  desirable,  let 
reference  be  had,  he  said,  to  the  section  which  enumerates  the  powers  that 
Congress  can  legally  exercise,  (being  the  eigtith  section  of  the  first  article.) 
Any  power  which  Congress  should  exercise,  not  warranted  by  that  char- 
ter, would  be  an  usurpation  upon  the  rights  of  the  states,  or  the  people; 
and  in  proportion  to  the  extent  of  the  usurpation,  should  be  the  execration 
of  every  friend  to  republican  government  and  the  liberties  of  the  people. 
It  would  be  discovered,  when  reference  was  had  to  the  section  of  the  Con- 
stitution alluded  to  above,  that  no  power  to  make  an  alien  law  is  granted. 
When  gentlemen  are  called  upon  to  justify  the  assumption  of  power,  they 
desert  the  ground  of  the  law  being  justifiable  agreeable  to  .the.  letter  of  the 
Constitution,  and  take  refuge  behind  the  sanctuary  of  implication.  Mr. 
Barbour  then  described  the  danger  of  implied  power,  in  a  warm  and  ani- 
mated manner.  He  begged  the  committee  to  be  alive  to  the  mischief  with 
which  this  doctrine  was  teeming.  If,  said  he,  we  once  abandon  the  high 
road  which  the  wisdom  of  our  ancestors  has  established,  and  in  which  the 
constituted  authorities  were  directed  to  walk ;  if  we  once  abandon  that 
palladium  of  civil  liberty,  our  rights  will  be  immediately  gone.  No,  said 
he,  let  us,  if  our  servants  turn  either  to  the  right  or  to  the  left,  smite  them 
as  of  old  was  Balaam's  ass,  so  that  they  turn  not  away  from  the  path  to 
which,  if  we  mean  to  keep  our  liberties,  they  should  adhere  with  unde- 


58  DEBATE  ON  VIRGINIA  RESOLUTIONS. 

viating  regularity.     Promulge  it  once,  said  he,  to  the  world,  or  rather  to 
Congress,  that  they  have  a  right  to  exercise  powers  by  implication,  and  it 
requires  not  the  aid  of  prophecy  to  foretell,  if  we  may  judge  of  the  future 
by  the  past,  that  those  great  and  inestimable  rights  which  flow  from  nature, 
and  are  the  gift  of  nature's  God,  will  be  assassinated  by  the  rude  and 
unfeeling  hand  of  ferocious  despotism.     That  body  will  not  only  pass 
alien  and  sedition  laws,  which  they  have  had  the  audacity  to  pass  in  the 
tenth  year  of  the  Constitution,  but  will  go  on  to  increase  the  already  black 
catalogue  of  crimes,  new  fangled,  and  existing  only  in  the  brain  of  suspicion 
and  political  villany,  till  some  of  the  best  patriots  are  sacrificed,  and  the 
purest  blood  of  which  America  boasts,  streams.     The  friends  of  liberty  will 
be  sacrificed,  as  so  many  obstacles  to  their  ambitious  designs,  and  des- 
•  potism,  covered  with  the  gore  of  patriots,  will  stalk  with  impunity  amongst 
us.     But,  Mr.  Barbour  said,  he  had  determined  to  pursue  the  gentleman 
from  Prince  George  through  all  the  meanders  and  twistings  of  his  argu- 
ment, and  expose  its  fallacy  and  danger ;  that  there  should  be  no  ground 
upon  which  the  supporters  of  this  law  should  find  rest :  like  the  dove  of 
old,  they  should  be  compelled  to  take  refuge  in  the  ark,  which,  by  the 
resolutions,  was  prepared  for  their  reception.     For  this  reason,  for  the  sake 
V~  of  argument,  but  for  that  only,  (God  forbid  it  should  be  for  anything  else,) 
he  would  admit  the  principle  that  Congress  might  legislate  by  implication, 
yet  it  could  have  no  power  of  the  kind  which  appears  to  have  been  exer- 
cised in  making  the  alien  law.     But  before  he  went  into  that  subject,  it 
was  necessary  he  should  take  notice  of  some  miscellaneous  remarks  which 
had  fallen  from  the  gentleman  from  Prince  George.     That  gentleman  had 
observed  that  Congress  had  passed  the  law,  and  that  we  .should  hesitate 
before  we  declared  it  unconstitutional ;  for  if  it  was  unconstitutional,  the 
people  ought  to  resort  to  arms.     In  answer  to  this,  Mr.  Barbour  observed, 
that  the  circumstance  of  Congress  having  passed  it,  if  it  was  intrinsically 
unconstitutional,  did  not  render  the  law  less  so ;  and  although  he  had  a 
high  respect  for  some  of  the  members  of  Congress  in  both  houses,  on 
account  of  their  talents  and  integrity,  yet  some  of  the  warmest  advocates 
of  this  law  and  executive  measures,  were  suspicious  characters  from  their 
situation  in  life,  which  was  so  desperate  as  not  to  be  endangered,  but  on 
the  contrary  they  might  try  to  be  bettered  by  revolution  and  convulsion. 
Political  profligacy  in  a  republican  government  sooner  or  later  will  meet, 
its  fate,  the  execration  of  an  injured  people;  but  by  a  change,  the  Judases 
of  American  liberty  will  aspire  to  the  acme  of  opulence  in  the  sunshine  of 
monarchy,  the  most  genial  climate  for  the  growth  of  everything  which  is 
abhorrent  to  republican  simplicity  and  virtue.     But,  he  said,  if  he  had  the 
highest  estimation  both  for  their  virtue  and  wisdom,  he  should  exercise  his 
own  judgment,  with  which  he  had  been  blessed  by  the  God  of  nature,  and 
if  that  condemned  it,  he  should  not  hesitate  to  declare  in  strong  terms  his 
.  I  disapprobation.?!  He  trusted,  he  said,  that  the  American  people  were  not 
/  prepared  for  unconditional  submission  and  non-resistance.     A  doctrine  like 
/    this  would  have  disgraced  the  last  century,  and  was  fit  only  for  the  misera- 
/\  ble  regions  of  the  East,  where  ignorance,  superstition  and  despotism  their 
sad  dominion  keep;$  He  trusted  that  the  American  people  did  not  intend 
to  attach  to  servants  the  attribute  of  infallibility :  if  not,  the  adoption  of  the 


DEBATE  ON  VIRGINIA  RESOLUTIONS.  59 

law  under. discussion,  by  Congress,  would  have  no  weight  upon  the  mind 
of  the  committee.  The  gentleman  urged  that  we  should  hesitate,  before  a 
declaration  was  made  that  the  law  was  unconstitutional.  Mr.  Barbour 
asked,  what  had  been  the  conduct  of  the  committee?  Had  they  rushed 
precipitately  into  a  determination?  On  the  contrary,  had  not  the  subject 
been  discussed  for  several  days ;  and  would  it  not  continue  to  be  discussed 
for  several  days  more?  Had  not  every  gentleman  an  opportunity  of 
delivering  his  ideas  upon  the  subject7?  And  had  not  a  depth  of  judgment 
and  a  brilliancy  of  talent  been  displayed  in  the  discussion,  which  would 
do  honour  to  any  deliberative  body?  In  short,  had  not  the  subject  been 
treated  in  a  manner  suited  to  its  importance  ?  What  more,  then,  could  be 
asked  1  The  gentleman  from  Prince  George  was  for  the  people's  rising 
en  masse,  if  the  law  was  unconstitutional.  For  his  part,  Mr.  Barbour 
said,  he  was  for  using  no  violence.  It  was  the  peculiar  blessing  of  the 
American  people  to  have  redress  within  their  reach,  by  constitutional  and 
peaceful  means.  He  was  for  giving  Congress  an  opportunity  of  repealing 
those  obnoxious  laws  complained  of  in  the  resolutions ;  and  thereby  effacing 
from  the  Amercan  character  a  stain,  which,  if  not  soon  wiped  off,  would 
become  indelible.  The  gentleman  from  Prince  George  had  further  said, 
that  all  the  other  states  in  the  union  had  met  and  adjourned,  and  tacitly 
acquiesced  in  the  measures  which  had  been  pursued  by  the  general  govern- 
ment. The  gentleman  was  incorrect  in  point  of  fact. 

The  state  of  Kentucky  had,  in  language  as  bold  as  could  be  used,  ex- 
pressed their  execration  of  some  of  the  leading  measures  of  the  general 
government  adopted  at  their  last  session ;  but  upon  none  more  particularly 
than  upon  the  laws  complained  of  in  the  resolutions.  The  state  of  Ten- 
nessee was  in  such  a  situation,  as  to  require  or  authorize  the  Governor  to 
convene  an  extra  session.  About  what  could  it  be,  if  it  was  not  the  un- 
easiness .experienced  by  the  people  of  that  state  at  the  usurpation  of  the 
general  government?  In  respect  to  the  other  states  being  not  adverse,  he 
would  not  contradict  the  gentlemen.  But  what  weight  would  this  remark 
have  upon  the  committee?  Was  the  conduct  of  the  other  states  to  be  the 
criterion  whereby  to  govern  this  state  ?  He  trusted  not.  He  hoped,  that 
so  long  as  this  state  kept  its  independence,  it  would  think  and  act  for  itself. 
Virginia  had  been  always  forward  in  repelling  usurpation  of  every  kind ; 
and  he  trusted  she  never  would  forfeit  the  reputation  she  had  acquired ; 
but  always  would  be  the  champion  of  the  rights  and  liberties  of  America. 
But,  he  said,  having  answered  the  desultory  remarks  of  the  gentleman 
from  Prince  George,  he  would  return  to  the  doctrine  of  implication.  That 
gentleman  read  the  preamble  to  the  Federal  Constitution,  to  prove  that,  as 
the  liberty  and  general  welfare  of  the  whole  were  the  object  of  the  Con- 
stitution, Congress  had  a  right  to  do  anything  which  might  be  necessary, 
in  their  opinion,  to  effect  that  purpose.  The  inference,  Mr.  Barbour  ob- 
served, which  had'  been  deduced,  was  by  no  means  tenable.  To  assert 
that  the  preamble  to  the  Constitution  should  alter  or  subvert  the  Con- 
stitution, or  that  the  preamble  gave  powers  not  given  in  the  Consti- 
tution, was  in  theory  such  a  monstrous  solecism,  and  so  much  opposed 
to  every  principle  of  construction,  that  he  did  suppose  it  would  be  sub- 
scribed to  but  by  few.  The  preamble,  to  be  sure,  explains  the  end  of 


60  DEBATE  ON  VIRGINIA  RESOLUTIONS. 

the  Constitution.     It  was  to  secure  the  liberties  and  welfare  of  the  Ameri- 
can people,  but  upon  what  terms?     Why,  upon  the  terms  designated  in 
the  Constitution.     The  people  of  America  and  the  states,  knew  that  the 
powers  conceded  to  the  general  government  by  the  Federal  Constitution, 
were  adequate  to  the  ends  contemplated.     Then  to  pretend  to  assert  that, 
although  those  powers,  which  the  states  and  people  designated  as  those 
only,  which  should  be  exercised,  were  not  the  only  powers  that  were 
granted,  was  a  calumny  against  the  framers  of  the  Constitution  ;  for  they 
must  have  intended  to  ensnare  the  people.     For  what  mind  could  hesitate 
to  pronounce,  that  the  object  of  enumerating  the  powers  must  have  been 
to  fix  barriers  against  the  exercise  of  other  powers?     And  Mr.  Barbour 
demanded  to  know,  what  was  the  use  of  a  specific  enumeration  of  powers, 
if  it  was  intended  to  invest  the  general  government  with  sweeping  powers  ? 
For  what  could  be  more  awkward  or  ridiculous,  than  to  see  the  wisdom 
of  America  defining  the  particular  powers,  which  its  government  might 
legally   and  constitutionally  act  upon,  and  in  the  conclusion,  investing 
it  with  general  powers,  which  from  the  expression,  must  have  included 
all  those  specific  powers,  which  had  been  previously  granted.     Mr.  Bar- 
bour then  referred  to  Publius,  2d  vol.,  pages  46,  7,  8,  as  an  author,  who 
had  treated  this  subject  very  fully  and  ably.     The  gentleman  from  Prince 
George  had  said,  that  the  last  clause  of  the  8th  section  of  the  1st  article, 
commonly  called  the  sweeping  clause,  the  substance  of  which  is,  "  That 
Congress  shall  have  power  to  pass  all  laws  which  shall  be  necessary  to 
the  carrying  into  effect  the  foregoing  powers,"  would  justify  Congress  in 
making  the  laws  complained  of.    Mr.  Barbour  asked,  what  was  the  object 
of  that  clause?     It  was  not  to  create  new  powers,  but  to  complete  the 
other  powers  before  granted.     This  clause  was  indispensable  ;  without  it, 
the  Constitution  would  have  been  a  dead  letter.    For  if  Congress  possessed 
not  the  power  of  making  laws  to  carry  into  effect  the  powers  specifically 
enumerated,  the  powers  granted  would  have  been  useless  ;  since  to  possess 
rights  which  cannot  be  carried  into  effect,  was  just  the  same  as  if  there 
were  no  rights.     But  no  other  construction  could  attach  ;  for  that  clause 
speaks  only  of  those  powers  which  before  had  been  granted.     And  if  no 
power  relative  to  aliens  had  been  granted,  this  clause  could  have  no  possi- 
ble effect,  which  he  hoped  he  had  sufficiently  demonstrated.    Mr.  Barbour 
said  that  the  gentleman  from  Prince  George  had  relied  upon  the  fourth  sec- 
tion of  the  fourth  article  of  the  Constitution,  by  which  Congress  guarantees 
to  each  state  a  republican  form  of  government,  and  binds  itself  to  protect 
each  state  from  invasion,  &c.,  as  one  out  of  which  the  implied  power  of 
making  alien-laws  grew.      For  he  asked  how  could  the  general  govern- 
ment protect  from  invasion,  without  the  power  of  passing  a  law  like  the 
alien  ;  and  that  it  was  indispensable  the  general  government  should  possess 
the  power  of  expelling  aliens ;  for,  if  they  had  not  the  power,  the  state  of 
Virginia  might  admit  Bonaparte's  army,  with  him  at  their  head,  (if  he 
should  ever  escape  from  the  Nile.)     If,  said  Mr.  Barbour,  no  other  reason 
could  be  assigned  in  favour  of  the  alien  law,  than  an  idea  so  wild  as  the 
danger  of  admitting  Bonaparte  and  his  army,  its  supporters  must  be  in 
pitiful  distress.     To  anticipate  danger  of  this  kind,  was  to  attach  to  this 
state  not  only  criminality,  and  that  too  of  the  blackest  kind,  but  stupidity 


DEBATE  ON  VIRGINIA  RESOLUTIONS.  61 

bordering  on  idiocy,  and  to  set  at  defiance  the  uniform  experience  of  man- 
kind.  For  was  it  ever  yet  known  that  a  nation^  participating  the  blessings 
of  liberty  and  peace,  invited  into  its  bosom  a  powerful  foe,  by  which  those 
invaluable  blessings  might  be  rifled.  An  idea  of  this  kind  was  the  child 
of  a  mind  labouring  to  but  little  purpose  to  find  some  justification  for  the 
opinions  it  advances.  But  who  could  have  supposed  that  the  section 
alluded  to,  which  had  for  its  object  only  imposing  an  obligation,  should  by 
some  be  converted  into  a  source  of  power'.'  What,  Mr.  Barbour  asked, 
was'the  object  of  that  section?  It  was  to  impose  on  Congress  the  duty  of 
defending  each  state  from  invasion.  Congress,  in  the  eighth  section,  had 
the  power  of  declaring  war ;  yet,  without  this  section,  Congress  was  not 
bound  to  exercise  this  power;  and  but  for  this  section,. Congress  might 
have  seen  a  state  invaded,  and  yet  by  the  letter  of  the  Constitution, 
would  not  have  been  bound  to  have  defended  it  from  invasion,  but  might 
have  left  her  to  her  own  resources.  To  guard  against  this  inconvenience 
was  this  section  inserted ;  yet  out  of  this,  the  committee  were,  told  new 
powers  are  derived  to  the  general  government.  Mr.  Barbour  observed,  it 
appeared  to  him  a  bold  and  unjustifiable  assertion  to  say  that  the  expul- 
sion of  alien  friends  was  necessary  to  prevent  invasion.  For  his  part,  his 
small  intellectual  faculties  could  not  perceive  the  connexion.  He  could 
readily  perceive  the  necessity  .of  expelling  alien  enemies;  a  right  which 
Congress  possessed,  and  upon  v/hich  they  had  acted ;  but  that  the  expul- 
sion of  a  friend  was  necessary  to  the  prevention  of  invasion,  created  in 
his  mind  a  confusion  of  ideas.  It  was  asked  by  the  gentleman  from 
Prince  George,  by  what  authority  did  Congress  exercise  control  over 
foreign  intercourse,  if  it  was  not  by  implication?  ]\Ir.  Barbour  answered, 
that  the  power  was  granted,  he  thought,  by  the  third  clause  of  the  eighth 
section  of  the  first  article,  the  second  clause  of  the  second  section,  and  the 
third  section  of  the  second  article  of  the  Federal  Constitution.  By  the 
first,  Congress  has  power  to  regulate  commerce  with  foreign  nations.  By 
the  second,  the  President,  by  and  with  the  advice  and  consent  of  the 
Senate,  may  make  treaties,  and  shall  likewise  appoint  ambassadors  and 
other  public  ministers  and  consuls.  Andvby  the  last,  the  President  is 
vested  with  the  power  of  receiving  ambassadors  and  other  public  minis- 
ters ;  from  which  it  is  apparent,  that  without  the  aid  of  implication,  the 
general  government  possesses  the  power  of  regulating  foreign  intercourse. 
It  was  asked,  too,  by  the  same  gentleman,  -by  what  power  did  Congress 
erect  forts,  if  it  was  not  by  implication?  Mr.  Barbour  answered,  by  the 
last  clause  but  one  of  the  eighth  section  of  the  first  article  there  was  this 
language  :  "  Congress  shall  have  the  power  to  exercise  exclusive  legisla- 
tion in  all  cases  whatsoever  over  such  district,  &c.:"  "And  to  exercise 
like  authority  over  all  places  purchased,  by  the  consent  of  the  legislature 
of  the  state  in  which  the  same  shall  be,  for  the  erection  of  forts,  maga- 
zines, &c."  Mr.  Barbour  concluded  upon  this  point,  by  observing  that 
surely  the  gentleman  had  not  read  the  Constitution,  for  if  he  had  he* would 
not  have  propounded  the  question,  when  he  must  have  known  the  answer 
would  recoil  upon  him.  It  was  asked,  too,  by  the  gentleman  from  Prince 
George,  if  Congress  possessed  not  the  power  to  make  the  law  now  under 
discussion,  by  what  authority  did  they  make  a  law  relative  to  alien  ene- 


62  DEBATE  ON  VIRGINIA  RESOLUTIONS. 

mies.  Mr.  Barbour  answered  he  was  happy  he  was  able  to  instruct  the 
gentleman  upon  the  subjecj  of  the  Constitution,  which  he  (Mr.  Taylor)  had 
not  read,  or  if  he  had,  it  was  in  a  cursory  and  inattentive  manner.  He 
referred  <he  gentleman  from  Prince  George  to  the  eleventh  clause  of  the 
eighth  section  of  article  the  first.  By  that,  Congress  had  the  power  of  de- 
claring war.  So  soon,  then,  as  war  shall  be  declared,  by  the  law  of  na- 
tions, alien  enemies  become  prisoners  of  war ;  and  being  prisoners  of 
war,  and  Congress  having  the  sole  power  of  declaring  war,  Congress  had 
a  right  to  say  what  should  be  done  with  the  prisoners,  whose  destiny  Con- 
gress alone  could  decide.  Again,  the  power  of  declaring  war  was  the 
genus.  The  prisoners,  which  shall  have  been  made  under  that  declara- 
tion, might  be  qalled  a  species.  Now,  as  the  genus  has  been  granted,  the 
species,  which  is  subordinate  to  the  genus,  has  been  granted  likewise ;  it 
being  an  axiom  in  reason,  that  the  less  is  always  included  in  the  greater. 
To  deny  the  truth  of  this  position,  would  be  as  absurd  as  to  say,  when  A. 
has  transferred  to  B.  a  parcel  of  land,  that  the  house  or  the  wood  upon  the 
land  are  not  granted  likewise.  Or,  when  a  transfer  in  fee  simple  is  made, 
that  the  life  estate  is  not  given  also.  But  it  had  been  said,  that  Virginia 
had  passed  a  similar  law,  and,  therefore,  Congress  must  have  the  right. 
Doctrine  like  this  should  be  a  warning  to  the  Virginia  Legislature  not  to 
deviate  from  the  principles  of  liberty,  or  the  spirit  of  its  Constitution,  lest 
it  should  become  a  pretext  to  justify  the  worst  of  purposes  in  the  hands  of 
the  general  government.  He  observed,  that  he  would  not  say  whether 
Virginia  had  done  right  or  wrong,  in  passing  the  law  alluded  to,  because 
it  was  unimportant  in  the  present  discussion.  He  observed,  the  doctrine 
contended  for  by  the  gentleman  from  Printe  George,  namely,  that  Con- 
gress had  a  right  to  pass  the  law,  because  Virginia  had  done  so,  deserved 
the  most  serious  attention  and  unreserved  disapprobation  of  the  committee. 
For,  if  it  be  true,  the  government  of  the  United  States  would  become  an 
absolute  consolidated  government,  and  the  sovereignty  of  the  States  anni- 
nilated ;  from  which  situation,  said  Mr.  Barbour,  good  Lord  deliver  us ! 
But  fortunately  for  us,  he  said,  the  position  existed  only  in  the  mind  of  its 
author.  The  state  legislature  had  a  right  to  regulate  the  mode  of  de- 
scents. Agreeably  to  the  doctrine  of  the  gentleman  from  Prince  George, 
Congress  would  have  a  right  to  pass  a  similar  law.  Congress  would  pos- 
sess the  power  of  reviving  the  old  feudal  monarchical  principle  of  primo- 
geniture ;  and  he  had  no  doubt  that  it  would  be  done,  because  it  would  be 
in  unison  with  the  other  acts  of  the  general  government.  Yet,  no  sober 
man,  at  this  time,  would  say  that  Congress  has  a  right  to  to  say  anything 
relative  to  the  rules  which  shall  be  observed  in  the  descent  of  estates.  It 
must  be  clear  and  obvious  to  every  man,  not  infatuated  with  political  fal- 
lacy, that  there  is  a  line  of  demarcation  drawn  between  the  powers  of  the 
state  and  general  governments;  and  to  assert  that  Congress  can  do  what- 
ever the  state  can  do,  is  as  absurd  as  to  say,  the  state  can  do  whatever 
Congress  can  do  ;  a  position  he  did  suppose  the  advocates  of  congressional 
omnipotence  would  be-  unwilling  to  admit.  Mr.  Barbour  asked,  in  what 
cases  Congress  had  a  right  to  call  in  the  aid  of  implication, — admitting, 
for  argument's  sake,  that,  on  particular  occasions,  they  might  resort  to 
that  alternative  ?  For  allow  the  supporters  of  the  principle  the  utmost 


DEBATE  ON  VIRGINIA  RESOLUTIONS.  63 

latitude  for  which  they  contended,  it  could  only  be  resorted  to  when  the 
Constitution  had  given  a  power  that  cannot  be  consummated  without  im- 
plication. Wherever  the  Constitution  was  explicit,  implication  must  be 
excluded.  He  said  he  would  illustrate  his  idea  by  assimilating  this  case 
to  the  doctrine  which  would  prevail  in  the  instance  of  presumptive  and 
positive  evidence.  Where  positive  evidence,  from  the  nature  of  the  case, 
cannot  be  procured,  presumptive  evidence  is  admissible,  but  where  positive 
evidence  can  be  procured,  presumptive  evidence  is  inadmissible.  The 
Constitution,  too,  in  the  ninth  section  of  the  first  article,  is  expressly  in 
point.  It  is  to  this  effect :  "  The  migration  or  importation  of  such  persons 
as  any  of  the  states,  now  existing,  shall  think  proper  to  admit,  shall  not  be 
prohibited  by  the  Congress  prior  to  the  year  1808."  This  then,  explicitly 
declaring  that  Congress  shall  not  inhibit  the  migration  of  aliens,  if  the 
state  should  think  proper  to  admit  them,  must  unquestionably  exclude  the 
idea  of  implication,  and,  consequently,  the  deductions  drawn  from  that 
source,  (the  source  itself  being  corrupt),  must  be  fallacious.  But  it  might 
be  answered  by  a  quibbler,  that  the  alien-law  did  not  prevent  the  landing 
of  aliens  here.  But  where,  Mr.  Barbour  asked,  was  the  difference  between 
their  being  prevented  from  landing,  and  the  very  moment  they  landed 
being  sent  off?  He  begged  leave  to  state  a. similar  instance,  which  would 
prove  this  was  a  distinction  without  a  difference;  namely,  if  a  man  should 
suffer  another  to  come  into  his  house,  and  the  moment  he  stepped  in,  should 
kick  him  out,  would  this  not  be  as  bad,  nay  worse  than  if  he  had,  prevented 
him  from  coming  in  at  all  ?  The  liberal  mind  looked  down  with  pity  and 
disdain  upon  such  subterfuges  ;  and  hesitated  not  to  declare  that  the  alien- 
law  did,  beyond  question,  violate  the  Constitution  of  the  United  States  in 
this  part  thereof.  This  part  of  the  Constitution  being  violated  should  ex- 
cite universal  alarm ;  because  to  it  was  attached  particular  inviolability 
by  the  fifth  article  which  declares  that  in  this  particular  the  Constitution 
should  not  be  amended  prior  to  the  year  1808.  Mr.  Barbour  said,  the 
gentleman  from  Prince  George  having  exhausted  the  doctrine  of  implica- 
tion, had  resorted  to  that  of  expediency,  and  contended  that  although  Con- 
gress had  neither  express  nor  implied  power  to  pass  the  law,  yet  it  being 
expedient,  it  was  correct.  He  said  if  that  doctrine  be  true,  the  Consti- 
tution, instead  of  being  the  main  pillar  of  American  liberties,  was  but  an 
institution  calculated  to  ensnare.  By  the  provisions  in  the  Constitution, 
which  the  American  people  supposed  as  so  many  guarantees  to  their  liber- 
ties, they  had  been  trepanned  into  a  fatal  apathy,  whilst  they  indulged, 
themselves  in  what  they  supposed  a  well-grounded  reflection,  that  the 
checks  in  the  Federal  Government  were  inviolate.  They  were  now,  as  it 
were,  awakened  from  the  fatal  repose  into  which  they  had  been  carried  by 
misplaced  confidence ;  and  as  the  people  of  Caroline  well  expressed  it, 
this  boasted  Constitution  of  their  own  choice,  and  the  rights  which  it  se- 
cured, are  to* evaporate  in  the  crucible  of  legislative  expedience.  He  said 
he  felt  himself  unusually  agitated  at  the  bare  mentioning  of  such  .mon- 
strous doctrine.  Go,  said  Mr.  Barbour,  and  read  the  historic  page :  it 
would  there  be  found  that  expediency  has  been  the  invariable  pretext  of 
tyranny  :  it  has  been  with  that  engine  that  the  liberties  of  a  free  people 
were  eternally  assailed.  If,  said  he,  the  time  should  ever  come  (which 


64  DEBATE  ON  VIRGINIA  RESOLUTIONS. 

God  forbid)  when  that  doctrine  should  prevail,  we  might  date  it  as  the 
era  of  the  downfall  of  American  freedom.  From  that  moment,  let  the 
votaries  of  liberty  be  shrouded  in  sackcloth,  and  with  ashes  upon  their 
heads,  deplore  the  departure  of  their  protecting  genius.  And,  if  from 
America  the  genius  of  liberty  should  ever  take  her  flight,  like  the  vital 
spirit,  it  would  return  no  more  to  re-animate  the  body  from  which  it  had 
flown.  The  gentleman  too,  to  support  the  necessity  or  expediency  of  the 
law,  resorted  to  the  situation  of  this  country  as  it  related  to  France.  This 
he  said  was  the  favourite  theme :  this  was  a  ground  he  had  anticipated  ;  it 
was  not  new ;  it  had  been  successfully  adopted  by  the  higher  orders  of 
government.  The  conduct  of  France  towards  this  country  had  been 
echoed  by  the  friends  of  administration  from  every  patt  of  America,*  and 
under  the  momentary  delusion  created  by  the  dispatches  of  the  American 
envoys,  it  was  hoped  that  principles  of  usurpation  might  be  pushed.  The 
jealous  friends  of  the  Constitution  and  the  liberties  of  the  people,  if  they 
had  fortitude  to  oppose  the  impulse  of  the  moment,  and  declare  that  the 
general  government  was  bent  upon  the  subversion  of  republican  princi- 
ples, were  branded  with  the  opprobrious  epithets  of  being  disorganizes, 
French  partizans,  and  enemies  to  all  order;  and  the  President  of  the  United 
States,  confident  of  success  from  the  supposed  wisdom  of  his  operations, 
has  condescended  to  become  the  head  of  the  party,  and  has  used  language 
which,  from  its  billingsgate  style,  as  a  man  he  treated  with  supercilious 
contempt;  but  as  an  American,  he  would  feign  shed  an  obliterating  tear, 
which  should  efface  it  for  ever.  As  coming  from  the  chief  magistrate  of 
the  Union,  it  would  inflict  an  indelible  stigma  upon  the  American  name. 

Mr.  Barbour  said,  he  would  not  pretend  to  justify  the  conduct  of'France 
to  this  country.  It  was  such  as  met  with  his  disapprobation.  It  was  an 
event,  he  said,  that  would  be  long  deplored,  and  the  consequences  thereof 
were  incalculable;  for  it  had  become  the  pretext  of  those  measures,  of 
which  he  complained.  But,'  he  said  he  felt  indignant  at  the  idea,  that 
domestic  usurpation  was  to  be  justified  upon  the  ground  of  the  maltreat- 
ment of  a  foreign  nation ;  and  that  the  President  of  the  United  States 
should  dare  brand  the  guardians  of  the  rights  of  the  people  with  the 
offensive  name  of  a  faction ;  and,  to  use  his  own  language,  that  this 
faction  should  be /ground  into  dust  and  ashes.  Whom  did  Mr.  Adams 
mean  to  call  a  faction  ?  A  majority  of  the  yeomanry  of  America.  For. 
it  was  a  fact  not  susceptible  of  any  doubt,  that  a  large  majority  of  real 
native  Americans  were  opposed  to  his  election,  and  his  political  opinions  ; 
which  Mr.  Harbour  said  he  would  denounce  as  being  hostile  to  republi- 
canism. For,  although  Mr.  Adams  was  elected  by  a  majority  of  three 
votes,  yet  it  was  well  known  that  the  majority  was  produced  by  artifice 
and  coalition  of  federal  officers,  persons  deeply  concerned  in  funding  and 
banking  systems,  refugees,  foreigners,  (whose  whole  life  had  been  but  a 
life  of  warfare  against  the  principles  of  free  government,)  bankrupt 
speculators,  and,  to  complete  the  group,  all  those  who  could  profit  by 
change  and  convulsion.  Mr.  Barbour  said  he  would  not  be  understood  to 
pass  an  indiscriminate  censure  against  all  the  friends  of  Mr.  Adams;  be- 
cause he  believed  there  were  as  virtuous  and  as  enlightened  characters 
friends  to  his  election,  as  were  opposed  to  it.  Neither  should  he  have 


DEBATE  ON  VIRGINIA.  RESOLUTIONS.  65 

made  any  remarks  upon  the  nature  of  parties,  had  not  the  gauntlet  been 
thrown:  from  that  circumstance,  he  thought  himselfv  justifiable  in  taking 
it  up,  and  causing  it  to  recoil  upon  the  head  of  its  author.  He  said  he 
supposed  he  was,  one  of  that  party,  whose  fate  had  been  anticipated  ;  but 
he  felt  an  elevating  pride  when  he  was  cl-assed  with  the  names  of  Jefferson 
and  Madison  ;  names  which  to  the  latest  time,  so  long  as  worth  and  real 
patriotism  should  be  respected,  would  cast  a  shade  upon  the  author  of 
such  sentiments.  Mr.  Barbour  said,  for  his  part  he  could  not  perceive 
the  connexion  between  the  conduct  of  France,  and  the  conduct  of  our  own 
government ;  and  although  the  friends  of  administration  had  been  able  by 
their  dexterity  in  the  arts  of  delusion,  to  gain  a  momentary  advantage ; 
although  the  passions  of  the  people  were  excited  for  the  instant,  by  which, 
reason,  the  noblest  inhabitant  of  the  human  mind  had  been  dethroned,  yet 
they  (for  the  people  think  generally  right),  at  last,  under  the  influence  of 
truth,  when  generally  disseminated,  would  regain  their  reason  unclouded 
by  passion,  and  at  that  moment  they  would  spurn  from  them,  with  inex- 
pressible detestation,  the  authors  of  their  delusion.  He  hoped,  then,  that 
no  more  would  be  said  of  the  conduct  of  France,  in  justification  of  alien 
and  sedition'laws.  But  the  gentleman  from  Prince  George  had  attempted 
to  alarm  the  committee  into  his  opinions,  by  delineating  the  fate  of  the 
island  of  St.  Domingo.  Fie  told  us  that  the  fertile  plains  of  that  island 
had  been  deluged  with  seas  of  blood,  and  strewed  with  mangled  carcases 
and  mutilated  limbs  ;  and  that  if  the  alien-law  had  not  passed,  by  which 
all  dangerous  aliens  were  excluded,  the  same  fate  might  have  befallen  the 
Southern  States.  The  committee  were  almost  taught  to  tremble  at  the 
idea  of  their  houses  being  wrapt  in  flames ;  their  property  a  prey  to 
rapine ;  their  lives  to  massacre ;  their  wives,  their  daughters,  and  their 
sisters  falling  victims  to  the  brutal  and  indiscriminate  lust  of  the  negro; 
and  in  short  everything  to  misery  and  ruin.  But,  Mr.  Barbour  said,  he 
respected  too  highly  the  good  sense  and  judgment  of  the  committee,  to 
suppose  for  a  moment  that  attempts  of  that  kind  would  succeed :  he  knew 
they  would  be  deemed  the  meagre,  unimportant  chink  of  the  moment,  that 
would  scarcely  survive  the  instant  that  gave  them  birth.  That  gentle- 
man's sensibility  was  aroused  only  by  imaginary  evils ;  it  was  not  at 
leisure  to  deplore  the  situation  to  which  the  unfortunate  aliens,  by  this  law, 
will  be  reduced.  Instead  of  this  class  of  people  moving  in  the  elevated 
sphere  of  freemen,  which  they  occupied  before  the  adoption  of  this  law, 
they  will  be  sunk  into  the  despicable  grade  of  slaves,  whose  destiny  was 
suspended  upon  the  arbitrary  nod  of  one  man.  Mr.  Barbour  said,  the 
committee  were  told,  too,  of  a  conspiracy,  which  had  for  its  object  a  schism 
in  the  empire,  by  which  we  were  to  lose  the  western  country.  Where 
was  the  evidence  of  that  1  Before  he  was  willing  to  legislate,  he  said,  he 
must  have  evidence  of  the  fact,  of  a  fact  apparently  so  incredible,  and  so 
derogatory  to  the  character  of  his  country.  He  believed  the  western 
country,  particularly  Kentucky,  was  inhabited  by  as  virtuous  and  as  pa- 
triotic characters  as  the  world  ever  produced  :  men  who  possessed  that 
genuine  and  fervent  regard  for  the  cause  of  liberty  that  goes  to  elevate 
human  nature  a  grade  in  the  scale  of  animated  nature,  from  which  they 
look  down  with  ineffable  disdain  upon  such  calumnious  charges  as  those, 

5 


66  DEBATE  ON  VIRGINIA  RESOLUTIONS. 

Conspiracies,  plots,  and  wild  chimeras  were  always  resorted  to  in  justifica- 
tion of  tyrannic  measures.  The  popular  pretext  of  public  good  was  the 
auxiliary  called  in  to  palliate  measures  pregnant  with  public  evil.  And 
too  frequently  under  the  mask  of  a  zeal  for  the  welfare  of  the  com- 
monwealth, were  concealed  designs  which  would  eventuate  in  the  destruc- 
tion of  the  liberties  of  the  people.  But  they  had  been  told  by  the  gentle- 
man from  Prince  George,  that  the  law  was  made  for  two  characters, 
to  wit,  Talleyrand  and  Volney ;  and  that  those  characters  had,  in  conse- 
quence of  the  same,  sneaked  off.  Independent  of  the  absurdity  of  the 
principle,  namely,  the  making  a  general  law  to  suit  a  particular  case,  the 
gentleman  was  most  egregiously  mistaken  in  point  of  fact;  for  Talleyrand 
was  minister  for  foreign  affairs  for  France,  and  in  France  at  the  time  the 
law  passed.  How  then  the  law  could  pass  to  operate  on  Talleyrand,  was 
to  him  astonishing.  For  the  character  of  Talleyrand,  Mr.  Barbour  referred 
to  the  statement  which  had  been  made  by  the  gentleman  from  Prince 
William.  It  was  sufficient  to  say,  that  so  long  as  he  was  supposed  to  be 
a  martyr  to  the  cause  of  monarchy,  so  long  he  was  bosomed  by  Mr. 
Hamilton  and  his  party.  As  to  Mr.  Volney,  he  said,  the  cause  of  truth 
and  virtue  required  he  should  speak  more  at  large.  He  had  the  pleasure 
of  seeing  that  meritorious  character  whilst  in  America,  but  he  knew  him 
better  by  history  than  from  personal  acquaintance.  He  from  maturity 
had  been  influenced  by  the  benevolent  desire  of  ameliorating  the  condition 
of  mankind  by  illuminating  the  mind,  and  dispelling  superstition.  It  was 
for  this  sublime  purpose  we  saw  him  traversing  Asia,  and  sitting,  in  medi- 
tative silence,  amidst  the  ruins  of  Palmyra,  drawing  wisdom  from  experi- 
ence, and  developing  the  causes  which  contribute  to  the  dissolution  of  the 
elements  of  society,  and  the  overthrow  of  empires,  and  his  capacious 
mind  filled  with  materials  of  knowledge  of  the  best  kind.  We  saw  him 
returning  thence  to  his  native  country,  to  publish  to  the  world  his( acquire- 
ments, as  so  many  beacons  by  which  those  who  sit  at  the  head  of  affairs 
might  guide  the  vessel  of  state  free  from  those  shoals  upon  which  they 
have  xso  frequently  shipwrecked.  Unfortunately  for  this  philosopher, 
for  France,"  and  for  the  world,  Robespierre  was  at  this  time  at  the  acme 
of  power.  Robespierre,  the  most  infamous  of  mankind,  always  the 
enemy  to  rational  and  genuine  liberty,  wherever  it  was  found,  confined 
this  friend  to  the  species  in  the  instrument  of  despotism,  a  gloomy  jail. 
By  the  working  of  events,  a  revolution  takes  place  in  France,  by  which 
this  sanguinary  tyrant  met  the  fate  which  all  usurpers  merit.  Liberty 
reared  its  head,  and  emancipated  one  of  its  votaries,  the  enlightened 
Volney.  No  sooner  was  he  free  from  incarceration,  than  "he  left,  once 
more,  his  native  country  in  pursuit  of  wisdom,  and  steered  to  Columbia, 
once  happy  land.  He  explored  this  extensive  continent,  and  returned 
once  more  to  Europe  to  analyze  his  knowledge,  and  to  benefit  mankind 
by  disseminating  the  useful  information  which  he  had  acquired.  This, 
then,  was  the  character  against  whom  such  unfounded  calumnies  have 
been  uttered..  But  unless  some  evidence  was  exhibited,  he  should  take 
the  liberty  to  say  that  they  were  the  offspring  of  the  gentleman's  own 
imagination,  begotten  by  the  phantom  of  delusion. 

The  gentleman  from  Prince  George  observed,  that  the  power  of  making 


DEBATE  ON  VIRGINIA  RESOLUTIONS.  67 

a  law  like  the  one  under  discussion  should  belong  to  Congress ;  other- 
wise, Congress  would  be  dependent  upon  sixteen  states.  This  doctrine 
would  perhaps  do,  if  the  gentleman  was  in  Convention,  and  was  ascer- 
taining the  powers  which  shoulo^be  exercised  by  the  Congress;  but,  the 
committee  were  not  inquiring  what  these  powers  should  be,  but  what  they 
,  were.  This  reasoning,  he  made  no  doubt,  was  urged  in  Convention  ;  but, 
the  representatives  of  the  large  states,  which  were  but  thinly  inhabited, 
were  opposed  to  the  power  being  concede'd  to  the  General  Government  ; 
and  he  had  shown,  in  a  former  part  of  his  argument,  that  the  power  of 
restraining  the  migration  of  such  persons  as  the  states  should  think  pro- 
per to  admit,  was  expressly  inhibited  by  the  Constitution.  The  same 
gentleman  descanted  at  large  upon  the  conduct  of  France  towards  the 
European  powers.  Subterfuges  of  this  kind  evidently  demonstrated  the 
distress  to  which  the  supporters  of  this  law  were  reduced.  For  what  had 
the  conduct  of  France  to  do  with  an  abstract  inquiry  upon  the  constitu- 
tionality of  the  law  under  discussion?  Arguments  of  this  kind  were  cal- 
culated only  to  inflame  the  passions  at  the  expense  of  reason.  But,  since 
the  Committee  had  been  driven  into  this  subject  unavoidably,  Mr.  Barbour 
said  he  would  examine  what  had  been  the  conduct  of  France  to  the 
European  powers.  Why,  she  had  done  to  those  powers  what  those 
powers  intended  to  do  to  her.  She  had  subdued  them,  and  out  of  the 
rotten  governments,  under  which  those  countries  groaned,  had  established 
four  republican  governments.  The  gentleman  said,  that  the  French  in- 
trigues succeeded  only  in  republics,  whilst  in  monarchies  they  had  no 
effect.  This  was  a  calumny  against  republican  government,  en  masse, 
and  required  serious  attention  and  refutation. 

Mr.  Barbour  asked,  where  was  the  republican  government,  the  over- 
throw of  which  that  gentleman  so  much  deplored  ?  Was  there  a  republi- 
can government  in  Europe  1  No ;  there  were  some  which  had  impudently 
assumed  the  name ;  but  it  was  a  fact  not  to  be  controverted,  that  in  those 
countries  the  governments  were  completely  aristocratic ;  than  which,  no 
government  could  be  worse.  But  perhaps  that  gentleman  had  become  a 
disciple  of  the  new  philosophy  which  had  sprung  up  under  the  influence 
of  the  present  administration,  the  head  of  which  had  declared,  that  aris- 
tocracy is  the  dictate  of  nature,  is  indispensable  to  the  order  of  society, 
and  the  happiness  of  mankind,  (alluding  to  Mr.  Adams's  answer  to  the 
address  of  the  people  of  Harrison  County.)  If  this  principle  were  admit- 
ted as  orthodox,  the  world  should  lament  the  ruin  of  aristocracies;  but,  if 
it  were  false,  (which  he  believed  the  greater  part  of  America  would  not 
deny,)  so  far  from  mourning  their  downfall,  it  should  diffuse  general  joy. 
Mr.  Barbour  said  he  had  now  pursued  the  gentleman  through  all  the  argu- 
ments which  he  had  given  into  on  the  score  of  expediency,  and  trusted  he 
had  demonstrated  their  fallacy.  He  would  now  call  the  attention  of  the 
committee  to  a  contrast  he  was  about  to  draw  between  the  law  and  the 
Constitution.  Let  it  then,  for  argument's  sake,  be  admitted  that  Congress 
had  a  power  to  make  a  law  relative  to  aliens ;  yet  might  not  Congress 
violate  that  right  ?  As  for  example,  Congress  have  the  power  of  laying  a 
direct  tax,  yet  Congress  might  violate  that  right  in  laying  a  tax  without 
reference  to  the  inhabitants  of  the  state  upon  which  the  tax  was  to  be  laid. 


68  DEBATE  ON  VIRGINIA  RESOLUTIONS. 

The  alien-law,  Mr.  Barbour  said,  violated  the  sixth  amendment  of  the 
Constitution,  (the  substance  of  which  was,  "  that  no  warrant  shall  issue, 
but  upon  probable  cause,  and  that,  too,  supported  by  oath  or  affirmation,") 
in  this,  that  the  President,  without  probable  cause,  without  an  oath,  and 
barely  upon  suspicion,  had  a  right  to  apprehend  the  alien,  against  whom 
some  mercenary  informer  may  have  lodged  a  complaint.  It  likewise  vio-% 
lated  the  seventh  amendment,  in  this ;  that  by  the  alien-law  the  President 
was  invested  with  the  power  of  consigning  to  banishment,  without  the  for- 
mality of  trial,  this  unfortunate  class  of  people,  of  which  he.  supposed  we 
had  myriads  amongst  us,  when  by  that  amendment  it  is  declared,  "  that 
no  person  shall  be  held  to  answer  for  a  capital  or  otherwise  infamous 
crime,  unless  on  a  presentment,  or  indictment  of  a  grand  jury." 

By  the  eighth  amendment  it  is  declared,  too,  that  in  all  criminal  prose- 
cutions the  accused  shall  enjoy  a  speedy  and  public  trial  by  an  impartial 
jury  of  his  vicinage,  and  be  informed  of  the  nature  and  cause  of  the 
accusation ;  be  confronted  with  the  witnesses  against  him ;  have  com- 
pulsory process  for  obtaining  witnesses  in  his  favour;  and  have  the 
assistance  of  counsel  for  his  defence.  It  was  only  necessary  to  read  the 
alien-law,  to  show  the  palpable  violations  of  the  Constitution.  No  oath 
or  affirmation  was  requisite ;  no  presentment  or  indictment  by  a  grand 
jury  necessary;  no  trial  by  jury;  his  accusation,  conviction  and  punish- 
ment, were  all  to  be  announced  by  the  Presidential  officer  in  one  breath. 
It  was  true,  there  might  be  a  kind  of  mock  trial  before  a  tribunal  filled 
with  characters  selected  by  the  President :  a  tribunal  not  under  the  solem- 
nity of  oath,  not  under  the  least  responsibility  to  public  opinion,  but  from 
the  nature  of  their  institution,  are  taught  to  kiss  the  hand  from  whom  they 
receive  their  authority :  a  tribunal  unknown  to  our  Constitution ;  and  in 
fact,  as  far  as  it  went,  was  an  epitome  of  the  star  chamber  and  high  com- 
mission courts.  But,  Mr.  Barbour  said,  he  had  been  told  that  the  aliens 
were  not  parties  to  the  compact,  and  therefore  were  not  entitled  to  the 
benefit  of  the  compact.  He  contended  that  by  the  law  of  nations,  but 
what  weighed  still  more  strongly  upon  his  mind,  upon  principles  of  rea- 
son and  humanity,  they  were  entitled  to  the  benefit  of  the  rights  secured 
under  the  Constitution.  The  Law  of  Nations,  Vattel,  page  171,  section 
135,  declares  that  the  sovereign  authority  of  a  state  has  no  right  to  pre- 
vent the  migration  of  persons  into  its  country  without  a  good  reason. 
As  for  example,  China  has  a  right  to  refuse  the  admission  of  aliens,  be- 
cause its  country  is  completely  populated,  and  because  the  admission  of 
aliens  would  operate  an  insuperable  injury  to  its  citizens.  But  what  good 
reason  could  America  assign  for  refusing  admittance  to  strangers,  with  a 
country  extensive,  fertile  beyond  exception,  and  uninhabited.  Had  not 
the  persecuted  alien,  then,  a  claim  upon  us  not  to  be  frittered  away  by  the 
ingenuity  of  sophistry?  Mr.  Barbour  said,  having  shown  that  strangers 
had  a  claim  upon  us,  and  that,  by  the  laws  of  nations,  they  have  a  right 
to  come  amongst  us,  he  would  proceed  to  prove  that  when  they  were  in 
this  country,  they  were  entitled  to  the  benefit  of  the  law.  For  this  pur- 
pose, he  would  refer  to  VattePs  Law  of  Nations,  page  160-1.  It  is  there 
said,  that  the  law  of  the  land  is  not  only  applicable  to  the  particular  sub- 
jects, or  citizens  of  the  sovereign  authority,  but  applies  to  all  orders  of 


DEBATE  ON  VIRGINIA  RESOLUTIONS.  69 

people  of  every  description.  It  appeared  to  him  a  doctrine  of  the  most 
cruel  kind,  and  which  he  trusted  he  should  never  again  hear  re-echoed 
from  these  walls,  to  attempt  to  narrow  the  operation  of  an  instrument  for 
the  purposes  of  despotism.  A  benign  philosophy  would  dictate,  that  the 
Constitution  should  receive  a  liberal  construction,  when  the  welfare  of 
thousands  required  it.  But  Mr.  Barbour  said,  that  aliens  were  parties  to 
the  compact,  so  far  at  least  as  relates  to  security  against  oppression.  For, 
by  coming  to  this  country,  they  tacitly  agree  to  be  bound  by  the  Consti- 
tution and  laws  thereof.  ITan  alien  committed  an  offence,  how  in  ordi- 
nary cases  was  he  tried  1  As  citizens.  How  was  he  punished ?  As  citi- 
zens. Surely,  then,  as  he  was  to  be  punished  by  the  laws,  he  should  be 
entitled  to  their  protection.  And  Vattel  further  mentions,  that  an  injury 
done  a  stranger  should  be  punished  by  the  sovereign  authority,  in  as 
exemplary  a  manner  as  if  done  to  a  citizen. 

But  it  had  been  said,  that  the  sending  off  of  aliens  was  no  punishment : 
it  was  a  kind  of  preventive  justice.  Language  like  this,  was  the  offspring 
of  a  cold  heart  and  muddy  understanding.  What !  Was  it  no  punish- 
ment to  banish  a  fellow-man  from  a  country  where  he  has  invested  his  all  1 
Where  he  has  formed  the  strongest  imaginable  ties  ?  And  in  which  he 
expected  to  find  an  asylum  from  the  fangs  of  despotism?  And  perhaps  to 
consign  him  back  to  the  country,  from  the  persecuting  tyranny  of  which 
he  might  have  fled?  Let  those  who  advocate  this  doctrine,  bring  the  case 
home  to  themselves,  and  inquire  if  they  would  not  conceive  it  a  punishment 
to  be  banished  from  a  country  which  contained  their  all.  Mr.  Barbour 
observed,  that  the  alien-law  had  violated  the  Constitution  in  a  very  obvious 
manner,  by  destroying  the  main  pillar  upon  which  all  free  governments 
stand,  namely,  a  separation  in  the  three  great  elements  of  government. 
By  it,  the  President  was  invested  with  legislative,  executive,  and  judicial 
powers,  which  Montesquieu  defines  to  be  the  essence  of  despotism.  He 
first  gave  his  assent  to  the  law  as  President.  He  then  legislated  in  esta- 
blishing a  rule  by  which  the  alien  is  to  be  tried,  and  every  rule  was  a  law. 
The  law  itself  has  established  no  rule;  has  pointed  out  nothing  which  the 
alien  shall  avoid;  nor  yet  prescribed  anything  which  he  shall  do.  The 
President,  in  the  gloomy,  dark  and  inaccessible  recesses  of  his  mind,  was 
then  to  prescribe  the  rule,  and  make  it  known  only  when  he  intended  to 
punish  under  the  rule  ;  there,  then,  he  legislated.  He  then  was  to  judge 
whether  the  alien  had  violated  his  own  rule,  and  if  he  should  conceive  or 
suspect  that  he  had,  he  was  then  to  carry  his  own  sentence  into  effect. 
If  he  had  been  -called  on  to  delineate  a  picture  of  frightful  despotism,  Mr. 
Barbour  said,  he  should  think  he  had  discharged  the  task  by  copying  the 
alien-law.  The  President  of  the  United  States  was  invested  with  the 
pleasing  and  humane  power  of  pardoning.  What  kind  of  a  figure  would 
the  President  exhibit,  when  he  had. accused  and  condemned  th^  poor  un- 
fortunate alien,  to  be  applied  to  for  a  pardon?  Was  it  ever  yet  known  in 
a  country  which  had  participated  freedom,  and  had  progressed  in  juris- 
prudence, that  the  same  man  or  set  of  men  had  the  power  of  condemning 
and  pardoning  at  the  same  time?  The  enlightened  Montesquieu  has  ob- 
served that  it  would  create  a  confusion  of  ideas,  and  the  world  would  be 
at  a  loss  to  know  whether  the  culprit  had  been  acquitted,  or  condemned 


70  DEBATE  ON  VIRGINIA  RESOLUTIONS. 

and  pardoned.  In  consequence  of  the  measures  which  had  been  pursued, 
the  executive  branch  of  the  government  had  acquired  an  undue  preponde- 
rance of  power,  which  had  derogated  from  the  other  branches;  the  result 
of  which  was,  that  instead  of  their  moving  in  the  dignified  sphere  of 
planets,  they  had  dwindled  into  the  pitiful  character  of  satellites,  which 
played  around  the  executive  with  servile  complaisance.  And  the  liberties 
of  the  American  people,  which  revolve  around  the  Constitution  as  the 
centre  of  their  system,  should  that  be  destroyed,  would  be  precipitated  into 
ruin  likewise.  America  was  destined,  he  said,  to  increase  the  already  ex- 
tended .catalogue  of  despotic  nations,  and  we  should  be  compelled  to  admit 
the  melancholy  truth,  that  man  is  not  susceptible  of  self-government,  but 
is  doomed  to  be  governed  (he  trembled  whilst  he  related  it)  by  arbitrary, 
accursed  arbitrary  sway.  But  notwithstanding  all  this,  we  were  told,  Hail 
Columbia,  happy  land !  That  the  people  of  America  were  the  happiest  in 
the  world  !  What  then,  were  the  people  to  wait  till  the  pressure  of  the 
evil  principle  was  felt  ?  No.  As  an  elegant  author  expressed  it,  they  augur 
misgovernment  at  a  distance,  and  snuff  the  approach  of  tyranny  in  every 
tainted  breeze.  The  political  horizon  of  America,  which  some  years  ago 
shone  with  undiminished  lustre,  and  which  attracted  the  admiration  of  all 
the  world,  was  now  darkened  with  clouds  of  domestic  usurpation,  which 
waited  but  for  some  incentive,  to  burst  in  dreadful  violence  upon  our  heads. 
What  an  august  melancholy  scene  was  here !  That  at  the  conclusion  of 
the  eighteenth  century,  a  time  which  twenty  years  ago.  by  the  sanguine 
admirers  of  the  rights  of  mankind,  would  have  been  anticipated  as  the 
birthday  of  a  general  jubilee  of  emancipation,  when  distant  nations  would 
have  heard  and  have  quickened  into  public  life  by  the  sound,  the  Virginia 
Legislature  was  brought  to  decide  whether,  even  in  America  itself,  the 
birthplace  and  cradle  of  liberty,  liberty  shall  be  preserved,  or  whether, 
bound  hand-  and  foot  as  it  was,  it  shall  be  offered  up  as  a  sacrifice  upon 
the  altar  of  vice  and  ambition.  Mr.  Harbour  then  expressed  himself  in 
the  following  strong  and  animated  manner:  Legislators  of  Virginia!  The 
voice  of  the  people  speaks  to  you;  the  eyes  of  the  friends  of  liberty 
throughout  the  continent,  are  upon  you;  and  the  friends  of  mankind 
throughout  the  world  are  waiting  in  anxious  solicitude  the  result  of  your 
deliberation.  The  road  to  immortal  honour  is  open  before  you;  the  tem- 
ple of  fame  is  within  your  reach,  and  the  welfare  of  your  country  calls 
eminently  upon  you.  By  the  adoption  of  the  resolutions  you  raise  a  ram- 
part against  the  inroads  of  usurpation,  and  your  names  will  be  wafted 
down  on  the  stream  of  time,  crowned  with  laurels,  and  as  they  pass,  will 
be  hailed  by  a  grateful  posterity  with  plausive  acclamations.  But  if  you 
reject,  you  give  additional  weight  to  the  already  overgrown  power  of  the 
general  government,  by  which  the  liberties  of  the  people  will  be  sub- 
verted ;  apd  in  some  after  time,  when  our  country  shall  consider  us, 
the  people  pointing  you  out  shall  say,  there  go  the  authors  of  our  mis- 
fortunes. 

He  then  concluded  by  thanking  the  committee  for  the  attention  they  had 
'given  him. 

On  motion,  the  committee  then  rose,  the  chairman  reported  progress, 
asked  and  obtained  leave  for  the  committee  to  sit  again. 


DEBATE  ON  VIRGINIA  RESOLUTIONS.  71 

IN  THE  HOUSE  OF  DELEGATES, 

Tuesday,  December  18,  1798. 

The  House  resolved  itself  into  a  committee  of  the  whole  House,  on  the 
state  of  the  commonwealth,  Mr.  Breckenridge  in  the  chair,  when  Mr.  John 
Taylor's  resolutions  being  still  still  under  consideration, 

Mr.  MAGILL  said,  that  he  arose  with  sensations  never  before  experienced 
by  him ;  that  he  conceived  the  peace  of  the  United  States  to  be  involved 
in  the  decision  which  the  committee  were  about  to  make ;  for  the  question 
appeared  to  him  to  be  whether  the  states  should  remain  united  under  the 
federal  Constitution,  or  that  instrument  which  they  were  bound  to  support, 
be  declared  of  no  force  or  effect ;  that  in  delivering  his  sentiments  to  the 
committee,  he  would  address  himself  to  the  reason  of  the  members,  and 
avoid  an  appeal  to  their  passions;  for  if  the  opinion  he  advocated  could  not 
be  supported  upon  this  ground,  he  would  not  resort  to  any  other.  That 
he  had  attended  to  the  arguments  of  the  gentleman  from  Orange,  and  those 
of  the  gentlemen  who  preceded  him  on  the  same  side:  with  their  eloquence 
he  was  pleased,  and  their  talents  he  admired,  but  the  judgment  he  had 
formed  upon  the  laws,  after  the  most  serious  reflection,  so  far  from  being 
shaken,  had  received  additional  force  by  the  manner  in  which  the  debate 
had  been  conducted.  When  gentlemen  of  first-rate  talents  amuse  the 
fancy  with  eloquent  harangues,  instead  of  attempting  to  inform  the  under- 
standing, to  him  it  was  evident  that  they  thought  their  positions  untenable. 
He  said  we  are  to  decide  upon  the  constitutionality  of  the  "  alien  and 
sedition  laws,"  as  they  are  generally  called,  and  in  so  doing  are  we  not 
erecting  ourselves  into  a  court  of  justice,  particularly  so  as  the  resolutions 
declare  those  laws  null  and  void ;  for  where  is  the  department  of  the  govern- 
ment, except  the  judiciary,  that  can  exercise-  this  power?  He  said  that 
the  present  Assembly  was  chosen  by  the  people  for  the  ordinary  purposes 
of  legislation,  and  he  begged  to  know  the  source  from  whence  their  judicial 
powers,  even  over  a  law  passed  by  themselves,  in  a  case  where  their  juris- 
diction was  complete,  could  be  derived.  If,  said  he,  it  be  admitted  that 
we  cannot  judicially  act  upon  a  law  passed  by  this  or  any  other  Assembly 
of  this  commonwealth,  and  that  our  courts  alone  can  do  so,  where  is  that 
law,  point  out  that  feature  in  the  fe'deral  Constitution,  that  gives  to  this 
body  the  power  now  about  to  be  exercised  1  He  said  that  the  public  papers 
had  teemed  with  invectives  against  Congress  for  passing  these  laws.  Could 
gentlemen  say  this  was  a  criterion  to  judge  them  by?  He  said,  that  in  all 
the  publications  he  had  seen,  and  the  arguments  he  had  heard  used,  the 
authors  had  taken  for  granted  what  remained  to  be  proved.  Admit  the 
premises,  and  the  conclusion  may  fairly  be  drawn.  The  gentleman  from 
Orange,  Mr.  Magill  said,  had  observed  that  the  President  of  the  United 
States  was  a  friend  to  monarchy,  or  in  favour  of  a  monarchical  govern- 
ment. Admitting  this,  for  argument's  sake,  to  be  correct,  what  relation, 
said  he,  can  it  have  to  the  subject  now  under  consideration  ?  Will  it  en- 
lighten the  mind  of  a  man  when  he  is  called  upon  to  form  an  opinion  upon 
an  important  point,  to  have  his  judgment  drawn  from  that  object,  by 


72  DEBATE  ON  VIRGINIA  RESOLUTIONS. 

suggesting  one  foreign  and  entirely  unconnected  with  it?  He  said,  that 
for  his  own  part,  Mr.  Adams  possessed  his  highest  confidence ;  that  he 
viewed  him  as  the  tried  and  true  friend  of  his  country ;  that  the  happiness 
of  his  fellow-citizens  was  his  first  object ;  that  he  looked  up  to  the,  virtues 
and  talents  of  Mr.  Adams  with  veneration,  and  would  only  add,  that  his 
administration  had  in  his  opinion  been  pure  and  uncorrupt.  These  senti- 
ments, though  unpopular  here,  I  ever  have  and  will  avow,  said  Mr.  Magill 
so  long  as  the  measures  heretofore  pursued,  be  continued.  He  then  con- 
tended, that  the  statement  of  the  gentleman  from  Prince  George,  respecting 
the  rights  of  aliens,  was  correct,  and  the  contrary  one  of  the  gentleman 
from  Orange  not  so,  and  gave  his  reasons  for  this  opinion.  He  observed, 
that  he  meant  to  be  concise  in  his  replies  to  the  arguments  against  the  alien- 
law,  as  the  gentleman  from  Prince  George  had  opened  that  part  of  the 
debate,  and  would,  in  concluding  it,  notice  all  such  as  he  should  omit.  He 
said  that  he  adopted  this  mode,  supposing  that  the  opening  of  the  sedition 
act,  which  had  been  assigned  to  him,  would  take  up  as  much  time  as  the 
House  could  on  that  day  allow  him.  He  then  defined  as  necessary  to  a 
perfect  knowledge  of  the  subject,  the  powers  of  the  general  and  state 
governments.  He  observed,  that  the  only  true  and  natural  foundations  of 
society  are  the  wants  of  individuals.  He  said  this  rule  applied  to  the 
states,  considered  as  such,  at  the  time  this  Constitution  of  the  United  States 
was  formed.  The  insufficiency  of  the  old  confederation,  said  he,  evinced 
their  wants,  and  to  prevent  again  experiencing  these  wants,  this  Constitu- 
tion was  formed.  He  observed,  that  to  him  the  Constitution  of  the  United 
States  should  be  thus  explained,  as  giving  to  the  Federal  government  a 
control  over  the  national  affairs ;  to  the  state  governments,  the  care  of 
state  or  local  concerns.  Upon  this  definition,  and  the  Constitution  taken 
together,  he  proceeded  to  inquire  if  the  alien-law  had  violated  the  Consti- 
tution in  any  respect ;  and  he  agreed  with  the  gentleman  from  Prince 
George  in  his  statement  respecting  aliens,  that  VattePs  doctrine  was  solid, 
and  to  be  relied  upon.  He  insisted,  that  the  safety  of  a  nation  could  not 
be  secured,  without  such  a  power  as  this  law  gave  being  deposited  some- 
where. He  agreed  with  the  gentleman  from  Spottsylvania,  that  the  dis- 
pute with  France,  if  it  could  be  avoided,  ought  not  to  be  introduced ;  but 
how,  said  he,  can  this  be  done?  The  unjust  and  infamous  conduct  of 
France,  should  make  our  government  careful  how  its  citizens  introduce 
themselves  amongst  us,  with  their  diplomatic  skill ;  and  to  guard  against 
attempts  of  that  nation  and  its  citizens,  this  law  perhaps  was  passed.  He 
then  adverted  to  Volney  and  Talleyrand,  of  whom  the  gentleman  from 
Prince  George  had  spoken,  and  said,  that  that  gentleman  had  not  been 
correctly  understood  by  the  gentleman  from  Prince  William,  and  others, 
when  they  alluded  to  his  remarks  upon  Talleyrand  and  Volney,  The 
gentleman  from  Spottsylvania  had  mentioned  the  independence  of  the 
state  governments  at  the  time  of  the  adoption  of  the  Constitution.  He 
admitted  that  to  be  true,  but  said  the  argument  was  of  no  weight,  unless  it 
could  be  proved  that  they  were  independent  now,  as  their  situation  at  that 
period  was  the  subject.  He  then  made  some  remarks  in  answer  to  the 
gentleman  from  Brunswick,  upon  the  first  clause  of  the  ninth  section  of 
the  Constitution,  restraining  Congress  from  prohibiting  migration ;  and  he 


DEBATE  ON  VIRGINIA  RESOLUTIONS.  73 

said,  the  gentleman  from  Caroline  had  not  relied  upon  that  clause,  but  the 
gentleman  from  Orange  had.     He  said,  that  he  thought  the  clause  last 
mentioned,  related  only  to  slaves,  and  his  reason  for  thinking  so,  was 
founded  upon  the  language  used  in  the  latter  part  of  the  clause,  and  the 
whole  Constitution  taken  together.     He   then  quoted  the  opinion  of  Mr. 
George  Nicholas,  delivered  at  the  time  of  the  adoption  of  the  Constitution, 
in  effect  the  same  as  his  own.     He  here  read  the  opinion  delivered  by  Mr. 
George  Mason,  in  the  debates  of  the  convention  in  Virginia,  in  regard  to 
the  clause  referred  to,  respecting  migration  and  importation  extending  to 
slaves  only.     He  took  this  to  be  the  opinion  of  Mr.  Mason,  inasmuch  as 
his  observations,  as  well  as  those  of  others,  were  confined  to  that  descrip- 
tion of  persons  alone.     He  then  mentioned  the  alien-law  of  Virginia,  not, 
he  s3id,  with  a  wish  that  if  it  were  erroneous,  it  should  be  a  precedent, 
but  to  show  what  was  the  opinion  of  the  legislature  of  this  state  at  that 
time.     They  had  been  told,  that  the  Legislature  of  Virginia  had  a  right  to 
pass  such  a  law,  and  that  Congress  had  not.     He  contended  on  the  con- 
trary, from  the  Constitution,  that  the  state  had  a  power  to  pass  such  a  law, 
only  until  Congress  should  interfere,  by  passing  one  upon  the  subject.     He 
assimilated  this  to  the  case  of  citizenship,  upon  which  laws  had  been  passed 
by  the  state,  that  were  set  aside  when  Congress  passed  a  general  law,  by 
the  force  of  that  law.     He  then  said,  that  the  clauses  in  the  Constitution 
of  the  United  States,  and  in  the  bill  of  rights  of  Virginia,  securing  the  trial 
by  jury,  were  couch'ed  in  general  terms,  and  neither  were  ever  supposed  to 
be  infringed  until  the  passage  of  the  alien-law  by  Congress.     The  people 
of  this  state  had  passed  such  a  law  for  the  same  reason,  as  had  induced 
Congress  to  pass  one,  to  wit,  to  insure  domestic  tranquillity.     Let  me  ask, 
said  he,  if  here  we  ought  not  to  pause,  and  not  hastily  condemn  a  former 
legislature  of  our  own  state.     He  then  proceeded  to  show,  that  by  the 
suspension  of  the  writ  of  habeas  corpus,  (which  the  Constitution  warranted 
in  a  particular  case,)  the  trial   by  jury  was   taken   away  even  from  a 
citizen.     Would  not  then,  he  said,  the  true  meaning  and  spirit  of  the  same 
instrument  allow  it  to  be  taken  away  from  an  alien,  a  person  entitled  to 
no  absolute  rights,  and  who  was  no  party  to  the  compact,  in  a  similar  case. 
He  then  stated  at  large,  the  proceedings  which  took  place  in  the  case  of 
the  suspension  of  the  writ  of  habeas  corpus,-  and  obeerved,  that  a  person 
then  charged,  must  remain  in  prison  without  a  hearing,  until  the  emergency 
had  ceased.     That  case  then,  he  said,  was  in  principle  the  same  as  the 
alien-law.     The  cause  for  the  suspension  of  the  writ  of  habeas  corpus 
was  temporary,  and  when  the  cause  had  no  longer  an  existence,  the  effect 
would  also  cease.     He  then  contended,  that  when  the  alien-law  had  passed, 
there  was  good  cause  to  apprehend  danger  from  without,  and  from  aliens 
within  our  territory:   to  guard  against  their  attempts  was  proper.     He 
said,  the  gentleman  from  James  City  had  urged  the  necessity  of  aliens 
being  informed  of  the  rule  of  conduct  which  should  govern  them  upon 
their  arrival  in  America.     In  reply  to  this,  he,  Mr.  Magill,  would  observe, 
that  aliens  must  know  that  rule  from  the  law  of  nations,  which  is  a  part 
of  the  law  of  every  country,  and  is  simply  this,  "interfere  not   in   the 
governmental  affairs  of  a  foreign  country,  and  confine  your  attention  to 
your  individual  concerns  whilst  in  that  country."     He  thought  this  power 


74  DEBATE  ON  VIRGINIA  RESOLUTIONS. 

given  by  the  law,  of  removing  aliens,  properly  vested  in  the  President. 
He  stated  his  responsibility,  and  the  eminent  services  rendered  by  the 
present  President,  together  with  his  known  attachment  to  his  country,  as 
a  pledge  that  he  would  not  act  cruelly  or  unjustly. 

The  gentleman  from  Caroline  had  argued  upon  the  condition  upon  which 
the  Constitution  was  adopted  in  Virginia,  and  upon  that  point  he  had  under- 
stood him  to  say,  that  the  condition  being  broken,  we  were  no  longer 
bound  by  the  ratification.  This,  Mr.  Magill  said,  was  an  alarming  doc- 
trine. He  then  recapitulated  his  several  arguments,  in  order,  he  said,  to 
impress  upon  them  what  he  attempted  to  prove,  and  said,  that  he  would 
then  consider  the  sedition-law  :  and  here  he  requested  the  attention  of  the 
committee,  this  law  being  in  its  nature  particularly  important,  citizens 
being  affected  by  it.  The  freedom  of  the  press,  correctly  understood",  and 
as  it  was  considered  by  the  framers  of  the  Constitution,  he  contended  was 
not  abridged  by  the  law.  He  then  read  the  sedition-act,  and  said  the 
passage  of  this  law  was  opposed  in  Congress  by  those  gentlemen  who  had 
opposed  the  defensive  measures  adopted  against  a  foreign  nation,  and  in 
Virginia  it  was  reprobated  on  the  ground  of  its  being  unwarranted  by  the 
Constitution.  He  asked,  is  there  by  this  law  an  addition  to  our  penal  code, 
and  said,  that  in  his  judgment  no  new  offence  was  created  by  it,  every- 
thing it  forbids  being  before  an  offence  at  common  law.  He  said,  here  it 
will  be  proper  to  inquire,  whether  the  doctrines  of  the  common  law  apply, 
or  form  the  basis  of  our  laws :  that  they  do  so,  he  took  to  be  clear  and 
evident;  such  was  the  opinion  entertained  in  the  Virginia  Convention. 
He  said,  that  what  the  doctrines  of  the  common  law  were  prior  to,  and  at 
the  establishment  of  the  Constitution  of  the  United  States,  must  then  be 
the  rule,  and  the  term  liberty  of  the  press,  as  then  understood,  an  impor- 
tant consideration.  He  then  read  the  history  of  the  liberty  of  the  press, 
as  laid  down  by  Blackstone,  in  the  fourth  volume  of  his  Commentaries,  and 
said,  this  then  is'  the  history  of  the  term  freedom  of  the  press.  It  was  an 
exemption  from  all  power  over  publications,  unless  previously  approved 
by  licensers.  To  show  that  it  did  not  extend  to  an  exemption  from  legal 
punishment,  according  to  the  principles  of  the  common  law,  he  said,  let 
us  again  return  to  the  same  author :  "  Libels  are  malicious  defamations 
of  any  person,  and  especially  a  magistrate,  made  public,  by  either  printing, 
writing,  signs  or  pictures,  in  order  to  provoke  him  to  wrath."  He  pro- 
ceeded to  read  Blackstone's  definition,  with  the  mode  of  proceeding  against 
persons  charged  with  libellous  publications.  The  liberty  of  the  press,  as  he 
had  stated  it,  he  said  was  essential  to  a  free  state,  and  drew  the  distinction 
between  the  liberty  and  licentiousness  of  the  press.  He  said,  with  this 
definition  of  the  freedom  of  the  press,  as  it  was  before  them,  with  Black- 
stone's  rational  observations  in  their  view,  can  we  for  a  moment  suppose 
that  Congress,  when  they  concurred  in  recommending  the  third  article  of 
the  amendments,  and  the  assemblies  of  the  different  states,  when  they 
ratified  and  approved  that  article,  intended  to  procure  an  exemption  for 
writings  false,  scandalous,  and  malicious,  from  punishment,  according  to 
the  principles  of  the  common  law.  Doth  not  the  judicial  power  of  the 
United  States  expressly  extend  to  controversies,  to  which  the  United  States 
shall  be  a  party?  Can  there  be  a  case,  in  which  the  United  States  shall 


DEBATE  ON  VIRGINIA  RESOLUTIONS.  75 

be  called  a  party,  if  not  to  those  which  are  offences  against  the  United 
States,  their  people  and  government?  Was  it  intended  that  the  govern- 
ment should  be  destitute  of  the  means  of  defending  itself  or  its  members? 
Have  not  Congress  power,  "  to  make  all  laws  necessary  and  proper  for 
carrying  into  execution  the  powers  vested  by  the  Constitution  in  any 
department  of  the  government  of  the  United  States?"  He  said,  let  us  now 
see  what  construction  hath  been  put  upon  the  twelfth  clause  of  the  bill  of 
rights  in  Virginia,  by  the  Assembly  of  that  state,  for  a  law  by  that  body  is 
an  express  declaration  of  the  opinion  it  entertains.  The  twelfth  clause  is, 
"  That  the  freedom  of  the  press  is  one  of  the  great  bulwarks  of  liberty. 
and  can  never  be  restrained  but  by  despotic  governments."  The  Consti- 
tution of  the  United  States  says,  in  the  third  article  of  the  amendments, 
"  Congress  shall  make  no  law  respecting  an  establishment  of  religion  or 
prohibiting  the  free  exercise  thereof,  or  abridging  the  freedom  of  speech, 
or  of  the  press,  &c."  In  substance  the  language  is  the  same.  Amongst 
the  laws  passed  in  1792,  is  one  to  be  seen  in  page  219  of  the  Revised 
Code,  entitled,  "  An  act  against  divulgers  of  false  news ;"  which  law 
enacts,  "  That  whereas,"  &c.  He  then  read  the  law.  The  legislature 
was  then  of  opinion,  that  divulgers  of  false  news,  whether  printers  or 
others,  were  not  protected  by  this  clause  in  the  bill  of  rights.  Are  we,  he 
asked,  wiser  than  a  former  Assembly  ?  This  law  in  our  code,  upon  being 
compared  with  the  law  of  Congress,  will  be  found  much  more  severe  than 
the  latter.  By  the  law  of  Congress,  the  accused  may  give  in  evidence  in 
his  defence,  the  truth  of  the  matter  contained  in  the  publication  charged 
against  him,  &c.  But,  said  he,  is  it  known  to  the  people  that  in  a  prose- 
cution for  a  libel  in  Virginia,  under  the  state  laws,  you  can  neither  plead 
nor  give  in  evidence  the  truth  of  the  matter  contained  in  the  libel.  He 
said,  in  a  civil  action,  the  truth  could  be  pleaded  in  bar  of  the  suit,  and 
upon  proving  the  plea,  a  verdict  would  be  found  for  the  defendant.  He 
here  pointed  out  the  mode  of  proceeding  by  indictment  against  a  person 
accused  and  tried  under  the  state  law  for  a  libel ;  and  said  here  is  a  mate- 
rial distinction  between  the  two  laws.  He  contended,  that  the  freedom  of 
the  press  was  not  abridged,  no  new  offence  being  created.  He  asked,  how 
can  the  officers  of  government  carry  the  laws  of  the  union  into  effect, 
without  possessing  the  confidence  of  the  people  ?  He  said,  what  is  this  law 
designed  to  prevent,  is  it  the  circulation  of  false  and  malicious  slanders? 
And  if  so,  can  any  man  wish  to  exercise  such  a  right,  even  admitting  him 
to  possess  it,  the  bare  use  of  which  would  cover  him  with  infamy?  He 
said  a  law  passed  by  us  is  right,  but  a  similar  law  passed  by  Congress, 
having  equal  power  upon  the  subject-matter,  is  wrong.  He  repeated  his 
several  arguments  in  order,  and  said  that  the  committee  had  been  so 
indulgent,  that  he  would  now  pass  on  to  the  resolutions  offered  :  And  here, 
he  said,  it  appeared  to  him  that  the  wisdom  of  man  could  not  devise  a 
more  certain  mode  of  preventing  a  repeal  of  the  laws  complained  of,  than 
that  which  the  resolutions  pointed  out.  Are  gentlemen  serious,  he  said, 
in  wishing  a  repeal  ?  He  said,  the  moment  that  the  paper  under  considera- 
tion was  adopted,  he  should  consider  as  giving  birth  to  a  serious  and 
alarming  contest.  He  said,  are  we  sincere  in  our  professions  of  friendship 
to  the  government  of  the  United  States?  If  so,  why  snatch  with  avidity 


76  DEBATE  ON  VIRGINIA  RESOLUTIONS. 

an  opportunity  of  resorting  to  a  measure  violent  in  its  nature,  before  we 
have  made  an  attempt,  moderate  and  temperate.  Would  this  conduct,  he 
said,  be  pursued  by  an  individual  wishing  to  be  reconciled  to  his  friend  1 
He  said  the  resolutions  are  certainly  incorrect.  The  states  alone  are 
parties!  What,  are  the  people  entirely  excluded?  He  contended,  that 
there  is  not  a  state  in  the  Union  that  hath  so  unequal  a  representation  in 
the  state  legislature  as  Virginia.  Are  the  people  of  Virginia  represented 
according  to  numbers?  No  !  It  is  the  name  of  a  county.  Two  hundred 
freeholders  have  the  same  voice  in  this  Assembly,  as  one  thousand.  This 
statement,  he  said,  the  committee  knew  was  accurate,  and  the  two  counties 
could  be  named.  He  then  referred  to  the  third  amendment  to  the  Consti- 
tution of  the  United  Slates,  which  secures  the  right  of  petitioning  for  a 
redress  of  grievances.  The  states,  he  said,  could  never  be  injured  whilst 
that  power  existed;  and  could  he  be  convinced  that,  the  people  were 
aggrieved,  he  would  join  in  a  constitutional,  moderate  way  to  obtain  a 
redress.  He  said,  the  Kentucky  resolutions,  as  did  ours,  declared  these 
laws  null  and  void.  If  they  are  so,  let  the  proper  courts  say  so.  He  then 
proceeded  to  show  that  the  states  could  not  form  a  coalition ;  for  by  the 
Constitution  they  are  prohibited  from  entering  into  any  confederacy,  or 
making  any  agreement  with  each  other.  In  substance,  he  said,  this  was 
forming  a  confederacy.  He  then  read  an  extract  from  the  Federalist,  in 
the  writing  of  which  the  gentleman  from  Spottsylvania  had  said  Mr.  Madi- 
son was  concerned. 

He  said  he  thought  the  laws  constitutional,  and  then  enumerated  the 
consequences  of  adopting  the  resolutions  before  the  committee.  He  en- 
larged upon  this  subject,  and  again  entreated  the  committee  to  pause  and 
seriously  to  reflect  upon  the  awful  question  before  them,  for  such  he  really 
considered  it. 

MR.  FOUSHEE  arose  next,  and  asked  if  it  would  be  necessary  for  him 
to  tell  the  committee  that  the  subject  was  important,  after  what  the  gen- 
tleman last  up  had  said :  "  that  peace  or  war  was  to  be  the  consequence." 
And  being  so  important,  he  (Mr.  Foushee)  thought  that  they  should  most 
seriously  consider  the  matter  previous  to  a  decision  on  the  resolutions  be- 
fore the  committee.  He  then  made  some  remarks  upon  the  quotations 
from  the  law  of  nations,  used  by  Mr.  George  K.  Taylor  and  Mr.  Magill, 
to  show  that  sovereignty  must  reside  in  every  independent  nation,  and  the 
power  consequently  attached  to  sovereignty.  This  doctrine  he  did  not 
deny,  but  said,  if  the  states  individually  were  sovereign  before  and  at  the 
time  of  the  adoption  of  the  Constitution,  which  he  contended  they  then 
were,  and  still  are,  he  asked  could  any  one  lay  his  finger  on  that  part  of 
the  Constitution  of  the  United  States  which  had  taken  away  their  sove- 
reignty in  those  cases  embraced  by  the  alien  and  sedition  laws?  That  the 
Constitution  was  a  limited  compact,  and  contained  no  powers  but  those 
granted.  But  the  common  law  and  implication  had  been  resorted  to  by 
gentlemen,  in  support  of  a  contrary  doctrine.  By  admitting  the  common 
law  and  this  construction  to  have  force,  he  said,  Congress  might,  under 
these,  and  the  terms  general  welfare,  pass  any  act  whatever ;  thereby  set- 
ting the  Constitution  at  naught,  and  making  it  a  dead  letter;  and  nothing 


DEBATE  ON  VIRGINIA  RESOLUTIONS.  77 

would  be  reserved  to  the  states,  or  to  the  people.  He  was  alarmed,  he 
said,  at  the  method  which  the  gentleman  from  Prince  George  had  adopted, 
in  selecting  the  alien  from  the  sedition  law,  in  his  arguments,  and  con- 
fining himself  to  the  former.  In  doing  so,  he  (Mr.  Foushee)  feared  he 
discovered  an  intention,  under  the  guise  of  attacking  aliens  only,  who 
were  certainly  the  most  unpopular  inhabitants  amongst  us,  to  lay  a  foun- 
dation for  inflicting  similar  injuries,  in  future,  on  such  of  our  citizens  as 
might  give  offence,  and  that  he  thought  the  selection  of  this  law  might 
keep  the  danger  he  apprehended  out.  of  general  view.  Mr.  Foushee  made 
several  observations  in  answer  to  Mr.  G.  K.  Taylor,  respecting  the  rights 
of  aliens;  and  observed,  that,  by  the  alien  law,  they  were  deprived  uncon- 
stitutionally of  liberty,  which  he  (Mr.  Foushee)  contended  was  one  of 
their  rights,  as  well  as  life  and  property,  to  which  it  was  acknowledged 
they  were  entitled  ;  for  the  loss  of  their  liberty,  however,  he  said,  the 
gentleman  from  Prince  George  expressed  no  pity  nor  offered  any  excuse, 
except  one,  which  might  be  the  plea  of  any  tyrant.  Mr.  Foushee  then 
said,  he  thought  and  feared,  that  the  alien  law  was  but  a  step  to  something 
else,  to  wit,  a  precedent  under  which  citizens  might  in  future  be  attacked. 
Danger  too,  he  said,  had  been  assigned  as  the  cause  of  passing  those  laws. 
That  cause,  he  observed,  might  be  raised  up  at  any  time  by  an  artful 
President,  who  could  perhaps  previously  get  such  a  treaty  made  as  to  suit 
his  purpose;  and,  under  the  idea  of  danger,  to  produce  a  state  of  prepara- 
tion, by  which  his  power  might  be  increased,  and  which  might  become 
injurious  by  the  extension  of  influence  arising  from  patronage;  for  in- 
stance, &c.  What  direful  acts  and  effects  of  usurpation,  said  he,  may 
not  ensue  under  the  pretence  alone  of  danger?  The  unconstitutionally  of 
these  laws,  he  observed,  had  been  so  fully  proved,  that  it  would  be  unne- 
cessary then  for  him  to  say  anything  further  on  that  head ;  and  that,  if 
there  was  an  act  at  which  the  human  mind  could  revolt,  it  would  be,  in 
his  judgment,  the  denial  of  such  unconstitutionality.  He  then  said,  that 
if  the  doctrine  of  some  gentlemen  on  the  floor  of  Congress,  and  that  con- 
tended for  by  a  certain  modest  pamphleteer,  as  lately  published,  and  which 
some  days  past  had  been  so  copiously  detailed  by  the  member  from  Prince 
George,  and  which  he  (Mr.  Foushee)  had  since  seen,  could  be  established, 
he  admitted  the  resolutions  must  be  wrong;  but,  as  he  was  well  satisfied 
such  doctrine  could  not  be  supported,  he  thought  the  resolutions  ought  to 
receive  the  sanction  of  the  committee.  He  mentioned  the  subject  of  impli- 
cation again,  and  dwelt  on  its  direful  consequences,  many  of  which  he 
particularly  enumerated.  He  then  proceeded  to  answer  quotations  made 
by  gentlemen  from  certain  laws  of  Virginia,  particularly  the  alien-bill, 
endeavouring,  as  he  supposed,  to  deduce  from  thence,  power  to  'the  general 
government  over  aliens.  He  urged,  that  the  latter  particularly  was  a 
proof  that  the  state,  and  state  only,  had  a  right  to  pass  such  a  law ;  and 
consequently,  that  Congress  had  not  the  right. 

But,  he  said,  the  gentleman  from  Prince  George  had  urged,  that  if  Con- 
gress had  not  the  power  of  passing  such  a  law,  Virginia  might  admit 
under  the  description  of  aliens,  an  army  of  soldiers,  for  instance,  Bona- 
parte and  his  whole  army  (if  they  could  get  out  of  Egypt).  Mr.  Foushee 
asked,  what  idea  must  that  gentlemen  have  of  the  virtue  and  patriotism  of 


76  DEBATE  ON  VIRGINIA  RESOLUTIONS. 

his  fellow-citizens,  in  urging  such  an  argument?  He  said,  it  might  justly 
be  called,  in  the  gentleman's  own  words,  a  monstrous  idea.  He  then 
asked,  where  would  those  doctrines  contended  for  by  gentlemen  in  opposi- 
tion to  the  resolutions,  leave  us?  Would  it  not  be  in  a  mass  of  consolida- 
tion ?  Could  not  freemen,  he  said,  assert  their  rights,  without  being 
charged  with  an  intention  or  wish  of  dissolving  the  government  of  the 
United  States?  He  then  stated  the  observations  of  several  gentlemen,  in 
regard  to  the  consequences  of  opposition,  as  they  termed  it.  That  he  dif- 
fered, however,  from  them  in  regard  to  the  consequences  they  apprehend- 
ed, to  wit,  an  invitation  of  foreign  invasion,  &c.;  and  he  contended  strongly 
for  the  right  of  free -communication  and  consultation.  He  observed,  that 
the  gentleman  from  Prince  George  had  said,  that  these  acts  of  Congress 
having  been  passed  by  a  majority  of  that  body,  the  members  of  which 
had  taken  an  oath  to  support  the  Constitution  of  the  United  States,  could 
we  suppose  they  were  unmindful  of  it?  The  members  of  this  Assembly, 
'  Mr.  Foushee  said,  had  taken  the  same  oath,  in  addition  to  other  obliga- 
tions. That  they  must  therefore  pursue  their  duty,  in  discharge  of  their 
solemn  obligations  to  this  state  and  the  United  States,  without  regard  to 
the  conduct  of  other  people,  although  they  may  have  acted  also  under 
oath.  He  then  recapitulated  various  arguments  of  those  who  approved 
the  resolutions,  and  observed,  it  had  been  said  by  the  member  from  Prince 
George,  that  this  law  (meaning  the  alien-law),  although  passed,  would 
affect  very  few  comparatively,  indeed  it  would  be  almost  as  one  man  only. 
In  this  light,  he  (Mr.  Foushee)  considered  it  so  much  the  more  to  be 
dreaded,  as  an  exertion  for  its  repeal  might  not  be  sufficiently  made,  and 
thus  a  precedent  be  established.  Small  beginnings,  he  said,  often  pro- 
duced great  ends,  and  required,  therefore,  to  be  more  narrowly  watched. 
He  then  made  a  comparison  between  the  structure  of  the  Constitution 
and  the  universe.  The  latter  he  represented  to  be  a  system  composed  of 
atoms.  If,  said  he,  it  were  once  to  be  ascertained  that  we  had  a  power 
to  destroy  or  annihilate  one  atom,  it  would  soon  be  seen  that  we  had  a 
power  to  destroy  more  atoms ;  and  thereby  we  should  establish  a  princi- 
ple, which  might  go  to  the  total  destruction  of  the  universe.  The  same 
consequences  as  to  the  right  of  power  over  the  Constitution,  he  said, 
might  ensue,  for  the  power  over  each  was  limited.  Danger  too,  he  said, 
had  been  repeatedly  assigned  as  a  cause  for  those  laws.  He  again  asked, 
what  would  be  the  consequence  of  subscribing  implicitly  to  that  doctrine? 
The  principles  of  such  a  measure,  he  repeated,  would  be  to  establish  in  a 
designing  man,  or  set  of  men,  at  the  head  of  the  government,  all  power, 
which  might  be  continued,  even  when  the  danger  spoken  of  no  longer 
existed.  Precedent,  he  again  said,  would  be  thus  founded  and  resorted 
to ;  and  be  urged  upon  us  on  every  occasion,  by  saying,  the  same  thing 
has  been  done  before.  But  if  danger  alone,  added  he,  had  been  the  cause 
of  passing  those  laws,  and  they  could  be  justified,  even  on  that  score,  that 
danger,  he  said,  was  now  nearly  over,  or  greatly  lessened.  He  then  re- 
ferred to  historical  facts  to  prove  the  force  of  his  remarks.  These,  he 
said,  were  worthy  of  being  attended  to.  He  again  declared  himself  in 
favour  of  the  resolutions,  especially  the  first.  After  which  he  observed, 
that  he  had  confined  his  observations  generally  to  the  alien-law,  as  he 


DEBATE  ON  VIBGINIA  RESOLUTIONS.  79 

had  understood  the  gentleman  from  Prince  George  to  say,  early  in  the  de- 
bate, that  the  arguments  on  the  sedition-law  would  not  be  gone  into,  until 
those  on  the  alien-law  had  been  urged  and  decided  on.  However,  he  said, 
he  considered  the  sedition-law  of  much  the  greater  consequence  of  the 
two,  as  the  evils  were  by  that  law,  in  his  judgment,  much  aggravated ; 
and  that  all  the  arguments  urged  against  the  alien-law  applied  with  accu- 
mulated force  against  the  sedition-law;  and  that  he  could  as  yet  only 
account  for  the  selection  of  the  alien-law  in  argument,  as  being  the  most 
distant  from,  and  least  to  be  felt  by,  the  citizens  at  large.  He  then  pro- 
ceeded to  state  the  purport  of  the  sedition-law,  the  construction  which  had 
been  given  to  it,  and  the  consequences  resulting  from  its  operation.  And 
although  he  admitted,  that  speaking  might  not  be  expressly  enumerated, 
yet  he  said  the  free  communication  of  opinion  was  prevented,  and  particu- 
larly in  the  mode  of  writing,  printing,  &c.  He  then  stated  the  beneficial 
effects  resulting  from  a  free  communication  of  sentiment,  and  the  greater 
benefits  still,  flowing  particularly  from  the  freedom  of  the  press;  by  means 
of  which,  knowledge  was  most  extensively  diffused.  He  made  several 
observations  in  favour  of  the  manly  language  of  the  resolutions,  particu- 
larly the  first,  as  holding  out  our  express  determination  to  resist  usurpa- 
tion by  every  constitutional  mode,  as  well  as  invasion;  and  which  he 
thought  would  be  the  most  effectual  means  of  curing  the  present  evil,  as 
well  as  preventing  similar  attempts  in  future.  He  then  made  a  short  re- 
capitulation of  the  unconstitutionally  and  inexpediency  of  those  laws,  and 
observed,  that  injustice  and  deception  were  particularly  evident,  in  his 
judgment,  on  the  face  of  the  sedition-law,  to  wit :  four  specified  acts, 
"  writing,  printing,  uttering,  and  publishing,"  independent  of  other  prohi- 
bitions, were  made  punishable.  That  it  had  been  urged,  those  various 
acts  might  be  justified,  if  they  contained  the  truth.  He  urged  in  reply, 
that  the  justificatory  clause  only  enumerated  two  items,  "  writing  and 
publishing."  That  printing  and  uttering  were  not  in  that  clause;  and 
therefore,  justification  could  not  be  pleaded  in  excuse  for  a  prosecution 
founded  on  either  of  these. 


*  Mr.  BROO^J? arose  next,  and  said  that  he  never  could  consent  to  sanction 
the  passage  of  resolutions  having  so  alarming  and  dangerous  a  tendency 
as  those  which  had  been  presented  to  them  by  the  gentleman  from  Caro- 
line ;  and  before  he  gave  his  vote  upon  the  subject,  he  would  beg  leave  to 
state  to  the  committee,  without  adverting  to  the  particular  merits  of  the 
laws  that  were  the  subject  of  those  resolutions,  the  reasons  that  would 
govern  him  in  his  vote  upon  that  occasion. 

Resolutions  such  as  these,  saicrMr.  Brooke,  declaring  laws  which  had 
been  made  by  the  government  of  the  United  States  to  be  unconstitutional, 
null,  and  void,  were  in. his  opinion,  in  the  highest  extreme  dangerous  and 
improper,  inasmuch  as  they  had  not  only  a  tendency  to  inflame  the  public 
mind ;  they  had  not  only  a  tendency  to  lessen  that  confidence  that  ought 
to  subsist  between  the  representatives  of  the  people  in  the  general  govern- 
ment and  their  constituents,  but  they  had  a  tendency  to  sap  the  very  foun- 
dation of  the  government,  by  producing  resistance  to  its  laws,  and  were  in 
the  eyes  of  all  foreign  nations  evidence,  fatal  evidence,  of  internal  discord 


80  DEBATE  ON  VIRGINIA  RESOLUTIONS. 

in  this  country,  and  of  imbecility  in  our  government  to  protect  itself  against 
domestic  violence  and  usurpation.  For  these  reasons,  he  said,  he  was 
opposed  to  these  resolutions,  and  did  not  hesitate  to  declare  himself  equally 
opposed  to  any  modification  whatsoever  of  such  resolutions,  that  might  be 
intended  as  an  expression  of  the  general  sentiment  upon  this  subject, 
because  he  conceived  it  to  be  an  improper  mode  by  which  to  express  the 
wishes  of  the  people  of  this  state  upon  the  subject.  By  what  mode  then, 
said  he,  were  this  Assembly  to  understand  and  to  express  the  will  of  the 
people  of  Virginia  upon  the  laws  that  had  been  called  in  question  ?  By 
an  act  of  the  Virginia  Legislature,  declaring  these  laws  to  be  unconstitu- 
tional, null,  and  void?  No  !  But  by  the  laws  of  the  general  government, 
to  whom  the  power  properly  belonged  of  making  these  laws  ;  and  by  which 
their  will  had  been  already  expressed.  The  government  of  the  United 
States,  he  said,  was  one  organ  of  the  will  of  the  people  ;  the  Legislature 
of  Virginia  was  another  organ  of  the  public  will.  Those  two  organs,  then, 
of  the  public  will  were  at  variance.  One  of  these  organs  made  laws  for 
the  government  of  the  United  States  :  another  of  these  organs,  the  inferior 
one,  declared  these  laws  to  be  unconstitutional,  null,  and  void ;  and  the 
question  then  was,  which  of  these  organs  were  they  to  obey  ?  The  govern- 
ment of  the  United  States,  he  said,  most  indubitably  ;  because  in  the  govern- 
ment of  the  United  States,  the  representation  of  the  people  of  this  state  is 
more  pure  and  more  equal  than  it  is  or  could  possibly  be  in  the  slate 
government,  under  the  existing  state  Constitution.  In  the  general  govern- 
ment, said  he,  every  thirty  thousand  persons  are  represented  ;  but.  in  the 
state  government,  from  the  'great  inequality  in  the  representation,  under  the 
existing  state  Constitution,  it  was  utterly  impossible,  under  existing  circum- 
stances, by  this  mode  to  express  the  sentiments  and  wishes  of  the  people 
of  Virginia  upon  the  laws  that  had  been  called  in  question.  In  some 
counties  in  the  state,  said  he,  fifteen  hundred  or  two  thousand  freeholders 
constitute  the  number  of  electors,  who  are  entitled  to  but  two  representa- 
tives :  in  other  smaller  counties,  one  hundred  and  fifty  or  two  hundred 
freeholders  constitute  the  number  of  electors,  who  are  entitled  to  the  same 
number  of  representatives :  so  that,  from  this  apparent  inequality  in  the 
representation,  circumstanced  as  he  was,  and  a  number  of  other  gentlemen 
in  the  House,  how  could  they  form  any  sort  of  estimate  of  the  general  will  of 
the  people  upon  the  subject  of  the  laws  in  question.  In  the  county  of  Prince 
William,  he  knew  not  what  the  people  thought  of  the  laws.  The  repre- 
sentation from  Loudoun,  Berkeley,  Frederic,  and  many  other  large  coun- 
ties, were  in  the  same  situation.  To  what  standard  then  were  they  to 
resort  in  order  to  ascertain  the  general  will  upon  the  subject  ?  To  the 
laws  themselves,  he  said,  he  would  again  reply,  which  have  been  passed 
by  the  general  government,  where  we  are  equally  represented,  and  to 
whom  the  authority  properly  belongs  by  the  Constitution.  Since  the  re- 
presentatives of  the  people  in  the  general  government,  then,  had  made 
these  laws,  as  a  good  citizen  he  would  obey ;  as  a  good  citizen  he  valued 
the  Constitution  of  the  United  States,  which  he  had  sworn  to  support,  and 
which  he  conceived  to  be  invaded  by  the  resolutions  before  them ;  and 
when  the  people  of  that  part  of  the  country  which  he  had  the  honour  to 
represent,  became  so  exceedingly  degenerate,  so  lost  to  all  regard  for  the 


DEBATE  ON  VIRGINIA  RESOLUTIONS.  81 

great  advantages  and  benefits  resulting  from  a  connexion  between  the 
states  under  the  federal  Constitution,  as  to  give  him  instructions  to  vote 
for  the  adoption  of  resolutions  having  so  alarming  and  dangerous  a  ten- 
dency  as  those  which  had  been  offered  by  the  gentleman  from  Caroline, 
he  should  go  in  mourning  for  them ;  he  should  bid  adieu  to  legislation, 
and  seek  an  asylum  in  some  other  region  of  the  globe,  among  a  race  of 
men  who  had  more  respect  for  peace  and  order,  and  who  set  a  higher 
value  upon  the  blessings  of  good  government.  But  sensible  as  he  was 
that  his  constituents  would  have  discernment  and  patriotism  enough  to 
think  with  him  that  the  resolutions  offered  for  our  adoption  by  the  worthy 
member  from  Caroline,  teem  with  principles  hostile  to  the  very  existence 
of  the  general  government ;  that  they  would  think  with  him  that  any  at- 
tempt in  the  state  legislature  to  control  the  operations  of  the  general  go- 
vernment by  the  adoption  of  resolutions  inviting  the  sister  states  to  a  co- 
operation in  resisting  its  laws,  was  equally  dangerous  and  improper  as  it  is 
unnecessary,  he  should  give  a  negative  to  these  resolutions,  and  before  he 
sat  down,  beg  leave  to  offer  a  resolution  as  a  substitute  for  those  which  had 
been  presented  by  the  member  from  Caroline.  He  offered  it,  he  said,  at 
this  stage  of  the  business,  because  the  tocsin  of  rebellion  had  been  that 
day  sounded  in  the  House  by  the  resolutions  accompanying  the  Governor's 
letter  from  the  state  of  Kentucky.  The  sooner  then,  he  said,  our  de- 
termination not  to  co-operate  in  resisting  the  laws  of  the  general  govern- 
ment should  be  announced  to  that  state,  the  sooner  our  determination  to 
support  the  American  government  should  be  announced  to  the  nations  of 
the  earth,  the  better.  And  for  this  purpose  he  would  offer  the  resolution 
which  he  had  before  referred  to.  He  then  read  his  resolution,  in  the  fol- 
lowing words :  "  Resolved,  That  as  it  is  established  by  the  Constitution  of 
the  United  States,  that  the  people  thereof  have  a  right  to  assemble  peace- 
ably, and  to  petition  the  government  for  a  redress  of  grievances,  it  there- 
fore appears  properly  to  belong  to  the  people  themselves  to  petition 
when  they  consider  their  rights  to  be  invaded  by  any  acts  of  the  general 
government;  and  it  should  of  right  be  left  to  them  if  they  conceive  the 
laws  lately  passed  by  the  Congress  of  the  United  States,  commonly  called 
the  *  alien  and  sedition  bills,'  to  be  unconstitutional,  or  an  invasion  of 
their  rights,  to  petition  for  a  repeal  of  the  said  laws."  After  reading  the 
said  resolution,  Mr.  Brooke  handed  it  in  to  the  clerk's  table,  where  the 
same  being  again  read,  was  laid  upon  the  table. 

On  motion  of  Mr.  Johnson,  the  committee  then  rose,  the  chairman  re- 
ported progress,  asked,  and  had  leave  for  the  committee  to  sit  again. 


IN  THE  HOUSE  OF  DELEGATES, 
Wednesday,  December  19,  1798. 

The  House  resolved  iftelf  into  a  committee  of  the  whole  House,  on  the 
state  of  the  commonwealth,  Mr.  Breckenridge  in  the  chair,  when  Mr.  John 
Taylor's  resolutions  being  still  under  consideration, 

6 


82  DEBATE  ON  VIRGINIA  RESOLUTIONS. 

Mr.  POPE  arose  and  said,  that  he  was  not  accustomed  to  make  apolo- 
gies ;  but  that  he  looked  upon  it  as  necessary,  after  what  he  had  said 
before  on  the  subject.  He  could  assure  the  committee,  that  what  he  had 
said  at  first,  was  not  intended  as  a  speech  ;  and  he  had  no  doubt  but  that 
it  was  so  understood  by  others.  The  observations  were  of  a  ludicrous 
turn,  and  intended  only  as  an  answer,  of  that  kind,  to  the  gentleman  from 
Prince  George's  introducing  the  French  into  the  debate.  This  he  thought 
not  proper ;  and  the  object  of  his  former  remarks  therefore,  was  to  treat 
it  in  a  ludicrous  manner.  But  on  the  present  occasion,  he  said,  he  consi- 
dered himself  as  called  upon  by  his  colleague.  He  would  speak,  there- 
fore, while  the  thing  was  fresh.  And  in  order  that  he  might  not  be  mis- 
taken in  it,  he  had  noted  the  substance.  He  meant  not,  he  said,  to  go 
into  the  subject  before  them.  There  had  been  enough,  he  thought,  in  the 
harvest-field  already.  He  himself  would  only  glean  a  little.  His  col- 
league had  said,  that  he  was  not  instructed  :  but  that  if  his  constituents  were 
so  degenerate,  or  debased,  he  (Mr.  Pope)  was  not  positive  which  of  these 
terms  he  had  used,  but  it  was  no  matter  which,  it  was  the  same  thing,  as 
to  instruct  him  to  vote  for  such  resolutions  as  those  which  had  been  offered 
to  them  by  the  gentleman  from  Caroline,  he  would  go  into  mourning; 
that  in  case  the  resolutions  were  adopted,  it  would  be,  in  his  opinion,  no- 
thing more  than  the  tocsin  of  rebellion ;  and  in  such  a  case,  he  would  go 
to  some  other  country  to  seek  an  asylum.  Mr.  Pope  then  observed,  that 
he  would  pause  to  give  an  opportunity  for  correction,  if  he  had  misstated 
anything.  But  as  he  was  not  corrected,  he  said  he  would  proceed  to 
reason  from  those  observations  of  his  colleague.  He  considered  them  as 
applying  to  himself,  being  one  of  those  in  favour  of  the  resolutions ;  but 
still  he  did  not  believe  the  gentleman  had  intended  them  as  such.  He 
knew  him  better.  However,  he  said,  both  that  gentleman  and  the  gentle- 
man from  Frederic,  whose  coolness  and  moderation  must  be  admitted, 
had  sounded  the  alarm  :  they  had  called  the  resolutions  the  tocsin  of  re- 
bellion :  they  would  be  drawing  the  sword  as  it  were,  and  that  we  might 
date  the  destruction  of  the  liberty  of  the  people  from  the  day  on  which 
they  passed.  He  then  proceeded  to  read  the  resolutions  offered  by  the  other 
side  (meaning  those  offered  by  Mr.  George  K.  Taylor),  'and  to  comment 
on  the  language  of  them.  The  gentlemen  who  were  in  favour  of  these, 
he  said,  displayed  boldness.  Could  they  be  afraid,  then,  of  the  resolutions 
offered  by  the  gentleman  from  Caroline.  There  was  something  in  that 
he  did  not  understand.  He  said  he  must  make  a  deduction  from  it.  The 
gentlemen  surely  must  be  hypochondriac.  He  compared  their  case  to  the 
conceit  of  Don  Quixotte  about  the  windmills  ;  otherwise  they  could  not  be 
alarmed  about  our  having  an  army  of  Frenchmen  at  our  doors.  His 
colleague,  he  said,  had  observed  that  we  were  more  equally  represented 
in  Congress  than  in  this  Assembly.  In  answer  to  which,  he  asked,  if  the 
people  of  New-Hampshire  could  more  equally  represent  us  than  the 
Legislature  of  this  State.  He  then  stated  what  was  the  usual  language  of 
the  eastern  people  in  Congress  respecting  the  Virginians.  They  were 
called  by  them  disorganizes,  jacobins,  &c.  Heathen  proceeded  to  show 
which  of  our  members  in  Congress  had  voted  in  favour  of  those  laws,  and 
concluded  that  Mr.  Evans  was  the  only  one,  General  Morgan  and  Mr. 


DEBATE  ON  VIRGINIA  RESOLUTIONS.  83 

Machir,  as  well  as  he  could  recollect,  at  the  time  of  the  passage  of  the 
laws,  being  either  at  home,  or  on  their  way  home.  So  much  then,  he 
said,  in  answer  to  the  observations  of  his  colleague.  He  then  proceeded 
to  answer  the  observations  of  the  gentleman  from  Frederic,  in  regard  to 
the  gentleman  from  Prince  George's  introducing  the  French  into  the  de- 
bate. The  gentleman  from  Frederic,  he  said,  seemed  to  disapprove  it. 
He  (Mr.  Pope)  did  so  too.  He  could  not  imagine  how  the  gentleman  from 
Prince  George,  himself,  could  think  it  proper.  And  how  happened  it,  that 
this  gentleman  could  not,  in  the  course  of  his  reflections  think  of  Ireland 
too.  But  British  enormities,  he  supposed,  would  not  suit  his  purpose.  He 
then  proceeded  to  enumerate  them  ;  and  afterwards  adverted  to  the  quota- 
lions  made  from  Publius,  by  the  gentleman  from  Frederic,  respecting  a 
resort  to  be  made  to  the  people  in  such  a  case  as  the  present  one.  He 
(Mr.  Pope)  thought  that  the  Legislatures  ought  to  take  up  the  matter  first; 
and  the  people  only  in  the  last  resort.  He  stated  the  nature  of  the  bargain 
made,  at  the  time  of  adopting  the  Constitution,  which  was,  that  of  the 
people  giving  up  certain  rights,  and  reserving  the  rest  to  themselves.  This, 
he  said,  was  proved  by  the  twelfth  amendment,  which  he  read.  He  then 
observed  that  the  greater  part  of  the  Constitution  extended  to  the  prohibit- 
ing of  powers  to  the  States.  This  amendatory  clause,  therefore,  reserved 
to  them  what  was  not  prohibited.  He  then  read  the  resolution  offered  by 
Mr.  Brooke,  and  observed,  that  the  gentleman  from  Frederic  had  also 
acknowledged  the  people's  right  to  assemble.  But  how  did  that  right 
stand  ?  The  article  securing  it,  he  said,  was  invaded.  He  stated  an  in- 
stance of  his  receiving  a  wound  in  his  left  breast ;  in  such  case  he  would 
be  less  able  to  protect  himself  from  receiving  a  wound  in  the  right  breast, 
or  elsewhere.  This  he  compared  to  the  case  of  the  clause  above  referred 
to,»and  declared  that  our  most  important  rights,  secured  by  that  clause, 
were  destroyed.  Of  what  account  then  would  be  the  right  of  petitioning? 
If  they  were  to  lose  the  resolutions  offered  by  the  gentleman  from  Caro- 
line, he  said,  he  would  pronounce  our  liberty  to  be  gone.  But  whenever 
that  was  mentioned,  he  observed,  that  many  of  the  members  on  the  other 
side  would  frown  and  spurn  at  it.  He  then  made  several  contemplative 
observations  upon  the  consequences  of  our  rights  being  destroyed,  and 
afterwards  observed,  that  he  would  recur  to  that  part  of  the  speech  of  the 
gentleman  from  Prince  George,  in  which  he  had  introduced  the  goddess 
of  liberty ;  upon  which  Mr.  Pope  concluded  his  observations  in  the  fol- 
lowing words:  "Methinks  I  heard  that  gentleman  say  to  this  fair*goddess, 
by  your  name  we  aroused  the  American  people  to  oppose  the  tyranny  of 
Great  Britain !  By  your  name  we  brought  into  the  field  large  armies ! 
By  your  name  we  drove  from  our  country  the  mercenary  troops  of  George 
III.  and  established  our  independence!  We  have  now  no  further  use  for 
you  :  we  only  meant  to  change  men,  not  measures." 

Mr.  DANIEL  said,  that  he  stood  up  to  express  that  opinion,  which  his 
feelings  and  his  judgment  compelled  him  to  render  on  this  occasion.  He 
said,  he  did  not  flatter  himself,  that  he  should  be  able  to  afford  any  con- 
siderable aid  to  the  discussion,  or  to  give  very  material  information  to 
the  committee.  But  the  importance  of  the  question,  and  the  solemnity  of 


84  DEBATE  ON  VIRGINIA  RESOLUTIONS. 

the  appeal,  which  had  been  made  by  the  people  to  the  Assembly,  in  his 
opinion,  required  a  liberal  discussion  to  be  had ;  that  the  subject,  being 
contemplated  in  various  points  of  view,  might  be  the  better  understood. 
He  should  therefore  beg  the  indulgence  of  the  committee,  while  he  took  a 
short  view  of  the  subject.  In  doing  this,  he  said  he  should  follow  the  track 
which  had  been  led  by  the  gentlemen  opposed  to  the  resolutions  before  the 
committee,  beginning  with  the  "  alien-act"  so  called ;  and  first,  with  an 
examination  of  the  arguments  of  the  gentlemen  from  Prince  George  and 
Frederic.  He  said,  it  must  have  been  observed,  that  in  the  progress  of 
their  observations,  these  gentlemen  had  assumed  three  principles,  which 
could  not  be  yielded  to  them,  to  wit :  that  the  government  of  the  United 
States  was  a  consolidated  government, — that  the  doctrine  of  implication 
supplied  it  with  all  necessary  powers,  and  that  the  necessity  and  expedi- 
ency of  any  measure  authorized  its  adoption.  These  principles,  he  said, 
were  assumed  in  aid  and  maintenance  of  their  arguments,  although  they 
were  not  stated  in  express  terms.  But  it  would  be  easy  to  show,  that  the 
government  was  not  a  consolidated  government  in  principle,  however  it 
might  be  in  practice;  that  the  doctrine  of  implication  could  not  extend  the 
powers  of  government  beyond  the  specific  grant  of  the  Constitution  ;  and 
that  no  necessity  or  expediency  ought  to  authorize  a  violation  of  the  Con- 
stitution. 

The  Constitution  of  the  United  States,  he  said,  was  a  deputation  of 
power  from  the  several  States,  for  the  purposes  of  a  Federal  Government; 
wherein  the  several  states  were  sovereign  and  independent  as  to  powers 
not  granted,  and  the  Federal  Government  sovereign  and  independent  as 
to  those  powers  which  were  granted.  The  doctrine  of  implication  could 
not  increase  the  powers  of  the  Federal  Government,  but  could  only  go, 
as  it  was  expressed  by  the  Constitution,  to  authorize  it  to  make  such  la,ws 
as  might  be  necessary  to  carry  the  powers  granted  into  effect.  Having 
premised  these  things,  he  proceeded  to  examine  the  arguments  which  had 
been  urged  in  favour  of  the  "alien-act." 

The  gentleman  from  Prince  George,  he  said,  prefaced  his  observations 
on  this  subject,  by  saying  that  this  was  an  act  of  the  Congress  of  the 
United  Stales,  in  which  were  combined  the  wisdom  and  deliberation  of  all 
America ;  that  the  determination  of  this  combined  wisdom  and  deliberation, 
was  the  strongest  evidence  of  the  constitutionality  of  the  act,  and  that  it^ 
was  therefore  dangerous  for  us  to  interfere  on  this  subject.  Mr.  Daniel  hoped 
this  modft  of  reasoning  would  make  no  impression  on  the  committee.  He 
said,  it  was  an  argument  that  would  equally  apply  to  every  possible  mea- 
sure of  the  Federal  Government;  and  by  this  rule,  any  act  of  the  govern- 
ment, however  palpably  violating  the  Constitution,  and  prostrating  the 
rights  and  liberties  of  the  people,  might  be  maintained.  It  might  be  said 
of  every  act,  that 'the  combined  wisdom  and  deliberation  of  Congress  had 
sanctioned  it. 

The  objections  which  that  gentleman  made  to  the  mode  of  remonstrance 
adopted  by  the  resolutions,  he  said,  had  already  been  so  handsomely  and 
conclusively  answered  by  a  worthy  member,  (Mr.  Mercer,}  who  preceded 
him  in  this  discussion,  that  there  was  no  necessity  for  him  to  give  them 
any  attention. 


DEBATE  ON  VIRGINIA  RESOLUTIONS.  85 

The  same  gentleman,  he  said,  in  maintaining  the  constitutionality  of 
the  "alien-act,"  had  observed,  that  aliens  had  those  rights  only  in  the  Uni- 
ted States,  which  they  have  in  other  countries  by  the  law  of  nations  ;  and 
produced  Vattel  to  show,  that  the  sovereign  of  any  nation  had  a  right  to 
prohibit  the  entrance  of  strangers  into  its  territory ;  to  prescribe  the  con- 
dition upon  which  they  may  enter ;  to  command  their  departure  when 
necessary;  in  short,  that  it  was  matter  of  grace,  and  not  of  right,  that 
strangers  were  suffered  to  enter  the  territories  of  any  nation. 

If  this  doctrine,  said  Mr.  Daniel,  be  admitted  true  in  the  extent  in  which 
the  worthy  member  quoted  it,  it  was  easily  seen  and  could  not  be  over- 
looked, that  the  authority  applied  to  a  consolidated  government,  where 
there  was  but  one  sovereign  of  the  nation ;  but  it  could  not  apply  to  the 
United  States,  where  there  exist  the  several  sovereignties  of  the  state 
governments,  and  the  sovereignly  of  the  Federal  Government :  of  the  state 
governments,  as  to  powers  not  granted  :  of  the  Federal  Government,  as  to 
powers  which  are  granted  in  the  Federal  Constitution. 

But,  said  Mr.  Daniel,  this  power  over  strangers,  resulting  from  the  right 
of  domain  to  every  nation,  and  which  every  independent  nation  will  exer- 
cise, does  rest  somewhere  among  the  American  people.  It  remained,  then, 
to  be  inquired,  where  this  power  was  lodged  in  the  distribution  of  powers 
among  the  several  sovereignties  which  existed  in  the  United  States,  in  the 
manner  which  he  had  before  stated?  The  Constitution,  he  said,  gave  the 
answer.  By  section  ninth,  article  firsi,  it  was  declared,  that  "  the  migra- 
tion or  importation  of  such  persons  as  any  of  the  states  now  existing,  shall 
think  proper  to  admit,  shall  not  be  prohibited  by  the  Congress,  prior  to  the 
year  1808."  Thus  the  power  of  admitting  aliens  into  its  territory,  was 
left  to  the  several  states,  respectively.  It  followed  then,  that  each  state 
had  the  right  to  prescribe  the  terms  and  conditions  upon  which  aliens 
should  be  admitted,  and  was  the  judge  when  those  tei'ms  and  conditions 
were  violated.  Aliens,  said  he,  are  admitted  into  the  territory  of  a  nation 
or  state,  upon  certain  conditions.  They  could  not  therefore,  be  sent  off, 
or  commanded  to  depart,  without  injustice,  so  long  as  they  observed  the 
conditions  upon  which  they  were  admitted.  That  pou-er,  which  was  the 
sovereign  judge  of  the  propriety  of  admitting  aliens  into  its  territory,  must 
be  the  sovereign  judge  of  the  necessity  and  justice  of  send-ng  them  away. 
This  necessity  and  justice  could  not  exist,  so  long  as  the  conditions,  upon 
which  they  were  ad  milled,  remained  unbroken.  Each  state  had  this 
power  over  its  respective  territory,  by  the  clause  of  the  Constitution  which 
he  had  just  recited.  Each  state,  said  he,  was  therefore,  the  sovereign  judge 
of  the  propriety  and  justice  of  commanding  aliens  and  strangers  to  depart 
from  the  limits  of  its  respective  territory. 

But,  said  he,  the  gentlemen  contend,  that  this  article  of  the  Constitution 
cannot  apply  ;  and  here  they  d-ffer  in  their  construction  ;  the  gentleman 
from  Frederic  maintaining,  that  this  clause  related  only  to  the  importa- 
tion of  slaves;  the  gentleman  from  Prince  George  insisting,  -hat  this 
clause  does  only  secure  to  the  stales  the  right  of  admitting  aliens,  but  does 
not  declare  that  Congress  shall  not  have  power  to  send  them  away.  He 
said  he  would  examine  the  objections  as  they  stood  in  order.  With  re- 
spect to  the  opinion  of  the  member  from  Frederic,  (Mr.  Magill,)  the  words 


86  DEBATE  ON  VIRGINIA  RESOLUTIONS. 

of  the  clause,  "  migration  or  importation,"  were,  from  their  very  terms,  a 
sufficient  refutation :  and  he  believed,  if  they  were  to  seek  the  reason  why 
this  clause  was  inserted  in  the  Constitution,  they  should  find,  that  the 
Southern  States  insisted  upon  it,  not  only  to  secure  their  right  of  continuing 
the  abominable  slave-trade,  but  that  they  might  also  have  it  in  their  power 
to  encourage  and  effect  the  settlement  of  their  back  lands.  The  gentleman, 
he  said,  had  urged  no  reason  of  his  own,  in  support  of  the  opinion  which 
he  gave,  but  read  to  the  committee  parts  of  the  speeches  of  Mr.  Mason 
and  Mr.  Madison,  delivered  in  the  Virginia  convention,  when  the  Consti- 
tution was  under  discussion.  But,  said  Mr.  Daniel,  when  this  document 
was  examined,  it  would  be  found  that  those  gentlemen,  in  the  parts  of 
their  speeches  to  which  the  worthy  member  referred,  did  simply  state, 
that  the  right  of  continuing  the  slave-trade  was  secured  by  this  clause  to 
the  Southern  States,  and  that  they  did  not  advance  any  sentiment  or  idea, 
which  could,  in  the  remotest  degree,  maintain  the  opinion,  that  this  clause 
related  to  the  "  importation  of  slaves  only,  and  did  not  relate  to  the  mi- 
gration" of  aliens  into  the  several  states. 

With  respect  to  the  objection  of  the  member  from  Prince  George,  (Mr. 
G.  K.  Taylor,)  that  although  this  clause  secured  the  right  of  admitting 
aliens  to  the  several  states,  yet  it  did  not  deny  the  right  of  Congress  to 
send  them  away,  it  might  be  observed,  that  the  objection  itself  admits  the 
sovereign  power  of  the  states  to  permit  strangers  to  enter  their  respective 
territories.  He  said  he  had  before  endeavoured  to  prove  that  this  power 
involved,  necessarily,  the  rights  of  prescribing  the  conditions  upon  which 
aliens  might  enter,  and  of  controlling  them  after  they  had  entered  the  ter- 
ritory of  any  particular  state.  But  to  meet  the  objection  more  pointedly, 
he  would  take  a  view  of  the  powers  of  any  particular  state,  unconnected 
with  and  separated  from  the  other  states.  Virginia,  for  instance,  indepen- 
dent of  her  federation  and  union  with  the  other  states,  would  be  completely 
sovereign,  and  have  all  possible  power  and  right  on  this  subject  to  admit 
aliens  into  her  territory,  and  to  control  and  send  them  away  at  pleasure, 
regarding  only  the  rules  prescribed  by  the  law  of  nations.  He  would  now 
ask  what  power  and  right  Virginia  had  given  up  on  this  subject,  in  her 
connexion  with  the  other  states,  by  the  Federal  Constitution  ?  It  was 
yielded  by  the  gentleman  that  she  had  power  and  right  to  admit  aliens 
into  her  territory.  He  again  demanded,  had  she  granted  the  power  and 
right  of  sending  them  away,  to  the  general  government?  But,  said  he,  it 
is  declared  by  the  twelfth  amendment  to  the  Constitution,  that  "  the 
powers  not  delegated  to  the  states  by  the  Constitution,  nor  prohibited  by  it 
to  the  United  States,  are  reserved  to  the  states  respectively,  or  to  the  peo- 
ple ;"  therefore,  he  insisted,  this  power  of  sending  away  aliens  from  the 
territories  of  the  particular  states,  not  being  delegated  to  the  United  States 
by  the  Constitution,  remained  with  Virginia,  as  it  respected  the  limits  of 
her  own  particular  territory.  But,  said  the  gentleman  from  Prince 
George,  Mr.  Daniel  continued,  this  article  of  the  amendments  must  be 
understood  that  whatever  is  not  expressly  reserved  to  the  states  is  given 
up  to  the  Federal  Government,  if  necessary.  Besides  the  perversion  of 
the  plain  meaning  of  this  article,  by  this  construction,  said  Mr.  Daniel, 
the  gentleman  should  have  remembered  that  he  stated  in  his  argument 


DEBATE  ON  VIRGINIA  RESOLUTIONS.  87 

that  a  construction  which  leads  to  absurdity  was  not  true.  This  construc- 
tion would  make  this  article  of  the  amendments  answer  no  purpose ;  it  was, 
therefore,  he  joined  with  the  gentleman,  absurd  and  untrue. 

The  powers  of  the  federal  government  being  expressly  defined,  "  it  was 
true  as  a  general  principle,"  that  powers  not  granted  were  retained  by  the 
states,  said  Mr.  Daniel ;  but  so  jealous  were  they  of  their  rights,  and  so 
fearful  of  the  greedy  doctrine  of  implication,  that  this  amendment  was 
recommended  and  annexed  to  the  Constitution,  for  the  purposes  of  security 
and  safety. 

The  gentlemen,  he  said,  finding  it  impossible  to  maintain  their  ground 
by  the  aid  of  any  clause  of  the  Constitution,  wherein  power  was  expressly 
delegated,  had  sought  the  assistance  of  several  general  phrases  and  ex- 
pressions, such  as,  "  to  provide  for  the  general  welfare,"  "  to  repel  in- 
vasions," "  to  make  laws  necessary  to  carry  the  foregoing  powers  into 
effect,"  by  which  they  endeavoured  to  maintain  that  the  general  govern- 
ment has  other  powers  than  those  expressly  given  by,  and  enumerated  in 
the  Constitution,  and  unlimited  power  as  to  all  subjects  of  a  general 
nature.  If  this  be  true,  said  he,  if  these  general  expressions  and  clauses 
give  general  and  unlimited  power,  the  special  enumeration  of  power  in 
the  Constitution  was  absurd  and  useless.  Those  sage  and  patriotic  poli- 
ticians who  formed  the  federal  plan  of  government,  puzzled  themselves  to 
no  purpose  in  defining,  enumerating,  and  limiting  power  :  they  had  nothing 
to  do  but  to  organize  the  government;  say  there  should  be  an  executive, 
judicial,  and  legislative  body;  prescribe  the  mode  in  which  the  members 
of  the  several  departments  should  be  brought  into  office ;  and  declare  that 
"  they  sliould  have  power  to  provide  for  the  general  welfare"  This 
would  be  precisely  such  a  Constitution  as  gentlemen  contended  was  our 
Federal  Constitution,  in  which  the  powers  of  the  several  branches  of  the 
government  were  so  specially  enumerated,  limited,  and  defined.  And  it 
was,  Mr.  Daniel  said,  a  wilful  and  studied  design  that  misapplied  these 
general  terms  and  clauses  of  the  Constitution,  for  they  are  necessarily  ex- 
plained by  the  special  grants  of  power :  they  must  be  understood,  that 
"  Congress  shall  provide  for  the  general  welfare,"  according  to  the  Con- 
stitution of  the  United  States,  and  the  powers  therein  granted.  "  Congress 
may  repel  invasions,"  according  to  the  Constitution,  and  the  powers  therein 
granted.  "  Congress  shall,  have  power  to  make  all  laws  which  shall  be 
necessary  and  proper  for  carrying  into  execution  the  foregoing  enumerated 
powers :"  not  to  increase  and  extend  their  authority,  but  to  carry  into 
effect  those  powers  which  are  enumerated  in  the  Constitution. 

He  said,  he  presumed  enough  had  been  said  in  answer  to  the  gentle- 
man's arguments  in  favour  of  the  rightful  power  of  Congress  to  legislate 
on  this  subject:  he  would  now  proceed  to  examine  the  arguments  which 
had  been  urged  with  an  intent  to  maintain  the  opinion  that  the  "  trial  by 
jury"  was  not  violated  by  the  "  alien-act."  The  gentleman  from  Prince 
George  had  said,  that  aliens  were  not  entitled  to  a  trial  by  jury,  because 
they  were  not  parties  to  the  Constitution,  were  under  no  obligations  to  the 
government,  and  that  no  duties  could  be  demanded  of  them.  That  citizens 
alone  had  a  right  to*a  trial  by  jury,  because  they  were  parties  to  the  Con- 


88  DEBATE  ON  VIRGINIA  RESOLUTIONS. 

I 

stitution,  which  secured  that  right,  and  on  account  of  their  obligations  and 
duties  to  the  government. 

Mr.   Daniel  said,  if  the  worthy  member  had   been  as   attentive   to 
the  authority  of  Vattel  on  this   point,  as  he  was  when  he  hoped  to  draw 
something  from  it  to  support  him,  he  would  have  found  the  reverse  of 
almost  everything  he  stated  relative  to  aliens,  to  be  true ;  he  would  have 
found  that  they  had  rights  to  be  protected,  and 'duties  and  obligations  to  dis- 
charge ;  that  they  were  bound  to  obey  the  general  laws  of  the  land,  and 
that  they  a  right  to  be  tried  according  to  the  general  laws  of  the  land. 
He  would   have  found  that,  "  in  countries  where  a  stranger  may  freely 
enter,  (as  in  this,)  the  sovereign   is  supposed   to  allow  him  access  only 
upon  this  condition,  that  he  be  subject  to  the  laws,  I  mean  the  general  laws 
made  to  maintain  good  order,  and  which  have  no  relation  to  the  title  of 
citizen  or  subject  of  the  state.    The  public  safety,  the  rights  of  the  nation, 
and  of  the  prince,  necessarily  require  this  condition ;    and  the  stranger 
tacitly  submits  to  it  as  soon  as  he  enters  the  country,  as  he  cannot  pre- 
sume upon  having  access   upon  any  other  footing.     The  empire  has  the 
right  of  command  in  the  whole  country,  and  the  laws  are  not  confined  to 
regulating  the  citizens  among  themselves,  but  they  determine  what  ought 
to  be  observed  by  all  orders  of  people  throughout  the  whole  extent  of  the 
state.     In  virtue  of  this  submission,  the  strangers  who  commit  a  fault, 
ought  to  be  punished  according  to  the  laws  of  the  country."    Vattel,  book 
2d,  chap.  viii.  p.  267,  sect.  101  and  102.     And  again,  page  268,  section 
104,  he  would  have  found  that,  "  the  sovereign  ought  not  to  grant  an  en- 
trance into  his  state  to  make  strangers  fall  into  a  snare  :   as  soon  as  he 
receives  them  he  engages  to  protect  them  as  his  own  subjects,  and  to  make 
them  enjoy,  as  much  as  depends  on  him,  an  entire  security,"  according  to 
the  general  laws  of  the  land.     He  trusted  that  the  committee  were  suf- 
ficiently satisfied  that  aliens  have  rights  which  are  under  the  protection  of 
the  laws  of  that  state  wherein  they  reside  ;  that  they  have  duties  and  obliga- 
tions to  discharge  to  that  state,  and  that  if  they  commit  a  fault,,  they  have  a 
right  to  be  tried  and  punished  according  to  the  general  laws  of  that  state. 
The  worthy  member  from  Prince  George,  as  if  he  foresaw  his  defeat  on 
this  ground,  took  refuge  under  tfrat  clause  of  the  "  alien-act,"  which  pro- 
vides th'at  "  an  alien  may  prove  the  falsity  of  the  charge."    Mere  mockery 
of  justice,  said  he,  to  prove  the  falsity  of  suspicion  !     Prove  the  falsity  of 
being  suspected  of  what  he  did  not  know,  of  what  he  was  not  informed ! 
There  was  no  rule  established,  by  observing  which  he  could  avoid  sus- 
picion :  there  was  no  rule  directing  what  shall  be  done,  and  what  shall  be 
avoided  by  the  alien  :  he  could  only  know  that  it  was  dangerous  for  him 
to  become  suspected  by  the  President  of  what  he  did  not  know,  and  that 
he  might,  if  he  could,  prove  the  falsity  of  a  suspicion  to  which  some  conduct 
of  his,  but  what  particular  conduct  he  could  not  tell,  may  have  given  birth. 
He  then  observed,  that  the  same  gentleman,  quitting  all   constitutional 
principles,  appealed  to  the  doctrine  of  necessity,  and  insisted  that  it  was 
absolutely  necessary  to  compel  dangerous  aliens  to  depart  from  our  coun- 
try, and  that  the  President  of  the  United  States  ought  to  be  authorized  to 
enforce  their  departure.     But,  Mr.  Daniel  said,  he  would  insist  that  some 


DEBATE  ON  VIRGINIA  RESOLUTIONS.  89 

rule  should  be  established,  instead  of  the  bare  suspicion,  to  decide  who 
were,  and  who  were  not,  dangerous  aliens. 

He  should  require  proof,  that  the  Constitution  authorized  Congress  to 
invest  the  President  with  such  a  power;  this  had  not  been  shown,  it  could 
not  be  shown.  He  contended,  therefore,  that  this  power  was  lodged  in 
the  several  states  respectively,  and  wisely  lodged.  For,  in  case  of°emer- 
gency,  each  state  had  it  in  its  power  to  act  immediately,  before  the  Presi- 
dent could  be  informed  of  the  danger.  The  authority  of  each  state  was 
always  at  hand  ;  could  be  immediately  applied  to,  and  would  be  readily 
inclined  to  take  efficient  measures  for  the  safety  of  iis  citizens.  The 
member  from  Prince  George,  he  said,  had  observed,  that  such  a  provision 
as  the  one  marked  by  the  alien-act  was  necessary  to  guard  against  the 
French  and  their  intrigues.  If  so,  he  said,  the  states  were  competent  to 
make  the  provision.  He  believed  they  were  as  much  disposed  as  any 
other  body  would  be,  to  adopt  all  necessary  and  constitutional  measures. 
He  hoped,  that  Virginia  had  virtue  and  patriotism  sufficient  to  view  with 
indignation,  and  to  suppress  with  vigour,  any  intrigues  of  a  dangerous  na- 
ture, whether  meditated  by  France  or  any  other  nation.  But,  in  adopting 
such  a  measure,  he  wished  to  observe  the  laws  of  nations.  He  could  not 
consent,  under  the  pretence  of  guarding  against  aliens,  who  were  citizens 
of  France,  to  violate  the  rights  of  other  aliens  among  us,  who  might  be 
citizens  of  any  other  nation.  He  contended,  that  the  alien-act  was  general, 
and  equally  applied  to  all  aliens,  whether  citizens  of  France,  or  subjects 
of  another  power.  He  stated  a  case  from  the  law  of  nations,  to  prove 
that  such  a  regulation,  if  made  at  all,  should  be  particularly  directed 
against  the  citizens  or  subjects  of  that  nation  from  whom  danger  is  appre- 
hended. 

The  member  from  Prince  George,  he  said,  had  read  a  clause  from  the 
Virginia  laws,  which  he  assimilated  to  the  alien-act  passed  by  Congress, 
and  from  which  he  argued  the  right  of  Congress  to  pass  the  law  in  qhes- 
tion.  He  requested  that  the  law  might  again  be  read.  (It  was  accordingly 
read  by  the  clerk  in  the  following  words :  "  It  shall  and  may  be  lawful 
for  the  Governor,  with  the  advice  of  the  Council  of  State,  to  apprehend 
and  secure,  or  cause  to  be  apprehended  and  secured,  or  compelled  to  de- 
part this  common  wealth,  all  suspicious  persons,  being  the  subjects  of  any 
foreign  power  or  state,  who  shall  have  made  a  declaration  of  war  against 
the  said  states,  or  from  whom  the  President  of  the  United  States  shall  ap- 
prehend hostile  designs  against  the  said  states,  provided  information 
thereof  shall  have  been  previously  received  by  the  executive  from  him.") 
Mr.  Daniel  then  said,  that  the  law  which  had  been  read,  pursued  the  law 
of  nations;  and  clearly  recognised  the  distinction  which  he  had  before 
laid  down,  that  it  did  not  authorize  the  Governor  to  apprehend  and  send 
away  all  aliens  whom  he  might  suspect;  but  such  suspicious  aliens  only 
whose  nation  was  at  war  with  these  states,  or  from  whose  nation,  hostilities* 
were  apprehended.  That  this  law  was  not  general,  but  particularly  di- 
rected against  those  aliens,  whose  nation  was  at  war  with  this  country,  or 
from  whose  na<ion  there  were  reasons  to  expect  war.  That  this  law,  in- 
stead of  furnishing  an  argument  in  favour  of  the  right  of  Congress  to  pass 
the  law  in  question,  was  a  strong  proof  that  the  legislature  of  Virginia,  at 


90  DEBATE  ON  VIRGINIA  RESOLUTIONS. 

the  time  of  its  passage,  entertained  the  opinion,  that  the  power  to  regulate 
this  subject  belonged  to  the  state.  He  said,  it  was  remarkable  that  the 
gentleman  from  Prince  George,  on  this  occasion,  following  the  example 
of  the  present  administration,  had  indulged  himself  in  declamation  against 
the  intrigues  of  the  French  nation ;  had  inveighed  with  the  utmost  bitter- 
ness, against  their  policy  and  injustice;  had  threatened  us  with  the  horrors 
of  another  St.  Domingo;  that  our  slaves  would  be  let  loose  upon  us;  that 
our  wives,  ouy  daughters,  our  sisters,  would  be  forced  into  the  rude  em- 
braces of  the  ruthless  negro,  who  would  butcher  them  before  our  eyes, 
immediately  after  having  satisfied  his  lustful  appetite.  Mr.  Daniel  said, 
this  language  was  addressed  to  the  feelings  and  passions,  and  not  to  the 
understanding  of  the  committee.  For  his  part,  he  should  consider  the 
subject  upon  principle.  To  the  intrigues  of  France  he  opposed  the  virtue 
and  patriotism  of  our  citizens  in  general;  the  vigilance  and  activity  of  our 
officers  and  magistrates  ;  and  the  wisdom  of  the  state  legislature  to  ob- 
serve all  necessary  measures,  an  evidence  of  which  was  seen  in  the  law 
which  had  been  read.  That  invectives  against  France  could  not  prove 
the  constitutionality  of  the  law  in  question.  That  if  they  were  intended 
to  excite  the  indignation  of  the  committee  against  that  republic,  the  gen- 
tleman had  spent  his  time  in  vain  ;  for  that  the  injustice  and  rapacity  of 
that  nation,  without  the  aid  of  the  gentleman's  elocution,  had  alreacty  in- 
flamed the  mind  of  every  member  into  bitterness  and  resentment.  But, 
amid  this  universal  glow  of  indignant  feelings,  he  wished  to  see  our  glo- 
rious Constitutions  saved  inviolate.  Secure  me  in  this  point,  said  Mr. 
Daniel ;  save  the  Constitutions  of  my  country  from  innovation  and  vio- 
lence, and  I  will  join  hands  with  the  gentleman,  and  swear  eternal  enmity 
to  France,  and  all  other  nations  of  the  earth,  who  shall  be  hostile  to  the 
liberty  and  independence  of  the  United  States.  But,  said  he,  it  would 
seem  as  if  the  injustice  of  France  to  other  nations ;  her  base  attack  upon 
our  neutral  rights,  and  undefended,  unoffending  commerce,  had  so  affright- 
ed gentlemen,  that  they  were  ready  to  abandon  those  principles  which 
were  once  so  dear  to  all  America.  Inglorious  sons,  however,  were  they, 
who  for  distant  and  feeble  alarms  would  forsake  those  principles  and 
those  rights  which  our  forefathers  sought  at  every  hazard,  and  main- 
tained amidst  the  threatening  ruin  of  war  and  bloodshed.  In  vain,  said 
he,  are  we  told  that  the  French  government  is  a  military  despotism,  which 
proscribes  the  liberty  of  the  press,  and  carries  its  measures  by  force  of 
the  bayonet !  It  cannot  reconcile  us  to  like  measures  in  the  United 
States.  It  cannot  reconcile  us  to  a  sedition-law  and  to  a  standing  army, 
which  will  probably  produce  the  same  miserable  effects  here,  as  they 
have  done  in  France.  It  cannot  prove  to  us  the  constitutionality  of  the 
acts  in  question. 

He  said,  before  he  took  leave  of  this  part  of  the  subject,  he  would  take 
notice  of  a  charge  which  had  been  made  by  the  gentleman  from  Fre- 
deric, against  those  who  advocated  the  resolutions,  that  they  addressed 
arguments  to  the  humanity  of  the  committee.  He  would  reply,  that  the 
opposers  of  the  resolutions  addressed  arguments  to  the  fears  of  the  com- 
mittee ;  that  admitting  the  charge  to  be  true,  (which  was  by  no  means  the 
case,)  it  was  much  more  honourable,  both  for  those  who  make  the  ad- 


DEBATE  ON  VIRGINIA  RESOLUTIONS.  91 

dress,  and  those  who  are  addressed,  that  application  be  made  to  the  feelings 
of  humanity,  rather  than  to  those  which  are  excited  by  fear  and  alarm. 
That  the  gentleman,  himself,  had  threatened  us  wkh  confusion  and  dark- 
ness, and  foreboded  the  hasty  setting  of  the  sun  of  American  glory,  if  we 
adopted  the  resolutions ;  and  his  coadjutor  from  Prince  George  had  in- 
vaded our  country  with  a  French  army,  and  slaughtered  our  best  and 
dearest  friends  before  our  eyes.  This  mode  of  argument,  however  unfair, 
was  by  no  means  novel.  When  our  gallant  forefathers  conceived  the 
mighty  design  of  declaring  the  American  world  independent  and  free,  the 
same  doctrine  of  terror  and  alarm,  of  dangers  from  abroad,  and  mischiefs 
and  ruin  incalculable  within,  was  pressed  and  repeated.  But,  resting 
firm  on  principle,  they  steadily  pursued  truth,  and  achieved  the  glorious 
deed  of  American  independence.  As  then,  so  now,  he  hoped,  this  doc- 
trine of  terrorism  would  make  no  impression ;  but  that  the  committee 
would  consider  the  subject  upon  principle,  and  determine  upon  its  merits. 

Mr.  Daniel  observed,  that  in  the  course  of  the  observations  which  he 
had  made,  to  obviate  exceptions  which  gentlemen  had  taken  to  the  reso- 
lutions proposed,  it  was  to  be  discovered,  that  his  principal  objections  to 
the  "  alien-act"  were,  that  it  violated  the  sovereignty  of  the  state  govern- 
ments ;  that  it  blended  legislative,  executive,  and  judicial  powers ;  that  it 
violated  the  right  of  trial  by  jury,  contrary  to  the  Constitution. 

With  respect  to  the  first  objection,  he  had  shown  by  the  foregoing  argu- 
ments, that  the  state  governments  were  sovereign  as  to  those  powers  not 
granted  to  Congress,  and  this  subject,  not  only  not  being  granted,  but  pro- 
hibited Congress  by  the  ninth  section,  first  article  of  the  Constitution,  it 
followed,  that  as  to  this  subject,  the  states  were  severally  sovereign ;  and 
that  any  attempt  by  Congress  to  legislate  on  this  subject,  within  the  limits 
of  any  particular  state,  was  an  attack(upon  the  sovereignty  thereof. 

As  to  the  second  objection,  that  the  alien-act  blended  legislative,  judi- 
cial, and  executive  powers,  it  might  be  observed,  that  legislative  power  is 
the  authority  to  prescribe  a  rule  of  conduct :  this  rule  is  the  act  of  the 
legislative  power,  declaring  what  shall  be  done,  and  what  shall  be  avoided. 
The  "  alien-act,"  said  Mr.  Daniel,  does  not  declare  what  the  alien  shall 
do,  and  what  he  shall  avoid :  it  does  not  declare  a  rule  of  conduct,  which 
he  can  know  and  observe :  the  President  has  the  power  to  prescribe  this 
rule  of  conduct  for  the  alien,  by  bringing  him  to  the  bar  of  suspicion,  if 
he  does  not  observe  a  line  of  conduct,  which,  not  being  designated  by  the 
"  alien-act,"  is  only  known  and  subject  to  the  President's  will.  But  to 
declare  this  rule  of  conduct  is  a  legislative  act ;  the  President,  by  this 
law,  has  effectually  the  right  to  prescribe  this  rule:  therefore,  he  con- 
tended, that  the  President  was  invested  with  effectual  legislative  power. 
He  certainly  had  the  power  to  judge  when  the  alien  came  within  the  rule 
prescribed  by  his  suspicion :  and  in  this,  as  in  all  other  cases,  he  was  in- 
vested with  executive  power.  Thus  in  one  person,  contrary  to  the  Con- 
stitution, was  to  be  seen  the  lawgiver,  judge,  and  executioner. 

With  regard  to  the  third  objection,  that  the  "  alien-act"  infringed  the 
right  of  trial  by  jury,  he  referred  the  committee  to  the  seventh  article  of 
the  amendments  to  the  Constitution,  where  it  is  found,  that  "no person 
shall  be  deprived  of  his  life,  liberty,  or  property,  without  due  process  of 


92  DEBATE  ON  VIRGINIA  RESOLUTIONS. 

law."  He  contended,  that  an  alien  was  a  person,  who  had  rights  of  life, 
liberty,  and  property,  and  was  therefore  within  the  provision  of  this  part 
of  the  Constitution.  He  had  before  shown,  that  by  the  law  of  nations,  an 
alien  had  the  right  of  being  tried  according  to  the  general  laws  of  the 
land.  It  was  here  evident,  that  an  alien  was  a  person  who  could  not  be 
deprived  of  his  "  liberty"  without  due  process  of  law.  It  remained  then 
to  be  inquired  what  was  this  "  due  process  of  law  ?"  This  "  due  process 
of  law,"  he  said,  was  to  be  found  in  the  seventh  and  eighth  articles  of 
the  amendments  to  the  Constitution,  that  "  no  person  shall  be  held  to 
answer  an  accusation,  unless  on  a  presentment  or  indictment  by  a  grand 
jury ;"  that  "  the  accused  shall  enjoy  the  right  to  a  speedy  and  public 
trial  by  an  impartial  jurjf,  of  the  state  and  district  wherein  the  crime  shall 
have  been  committed;  to  be  informed  of  the  nature  and  "cause *6f  the 
accusation;  to  be  con  fronted  with  the  witnesses  against  him;  to  have 
compulsory  process  for  obtaining  witnesses  in  his  favour;  and  to  have 
the  assistance  of  counsel  for  his  defence."  This  mode  of  trial  pointed 
out  by  the  Constitution,  this  "  due  process  of  law,"  was  disregarded,  and 
entirely  abolished  by  the  "  alien-act."  Having  taken  this  short  view  of 
the  alien-act,  he  said  he  would  proceed  to  consider  the  "  sedition-law,"  as 
it  was  commonly  termed.  He  could  have  wished  that  gentlemen  had 
given  their  opinions  freely  on  this  subject.  The  gentleman  from  Prince 
George,  he  said,  had  given  some  apology  why  he  declined  the  discussion  : 
he  had  committed  himself  a  day  or  two  past,  by  declaring  that  the  sedi- 
tion-law was  already  sufficiently  odious.  It  was,  therefore,  Mr.  Daniel 
said,  he  supposed  the  gentlemen  thought  it  best  not  to  meddle  with  it.  He 
would  receive  the  gentleman's  apology,  and  proceed  to  examine  the  law, 
according  to  his  own  ideas  on  the  subject,  in  which  he  would  occasionally 
take  notice  of  what  the  gentleman  from  Frederic  had  urged. 

He  stated  that  the  acts  enumerated  in  the  first  section  of  the  sedition- 
law,  as  offences  to  be  punished  with  heavy  fines  and  long  imprisonment, 
were  "  to  combine  or  conspire  together  with  intent  to  oppose  any  measure, 
or  to  impede  the  operation  of  any  law  of  the  United  States,"  or  to  intimi- 
date any  officer  under  the  government  of  the  same,  from  undertaking,  per- 
forming, or  executing  his  trust  or  duty  ;  or  to  counsel,  advise,  or  attempt 
to  procure  any  insurrection,  riot,  unlawful  assembly,  or  combination, 
whether  such  counsel  or  advice  had  effect  or  not.  The  offences  enume- 
rated in  the  second  section  of  said  law,  he  said,  were,  "  to  write,  print, 
utter,  or  publish,  or  to  cause  the  same  to  be  done,  or  to  aid  in  writing, 
printing,  uttering,  or  publishing,  any  false  writings  against  the  govern- 
ment, the  President,  or  either  house  of  the  Congress  of  the  United  States, 
with  intent  to^  defame  the  government,  either  house  of  Congress,  or  the 
President,  or  to  bring  them,  or  either  of  them,  into  disrepute;  or  to  excite 
against  them,  or  either  of  them,  the  hatred  of  the  people  ;  or  to  excite  any 
unlawful  combination,  for  opposing  any  law,  or  act  of  the  President  of 
the  United  States,  or  to  defeat  any  such  law  or  act.''''  These  were  the 
provisions  of  the  act.  The  provisions  of  the  Constitution  were,  "Congress 
shall  make  no  law  respecting  an  establishment  of  religion,  or  prohibiting 
the  free  exercise  thereof;  or  abridging  the  freedom  of  speech,  or  of  the 
press;  or  of  the  right  of  the  people  peaceably  to  assemble,  and  to  petition 


DEBATE  ON  VIRGINIA  RESOLUTIONS.  93 

/ 

the  government  for  a  redress  of  grievances."  Third  article  of  amendments 
to  the  Constitution.  He  requested  gentlemen  to  read  the  one  and  the 
other ;  to  compare  them,  and  to  reconcile  them  if  possible.  He  was  one  of 
those  who  believed,  that  the  first  clause  of  the  law  would,  in  its  operation, 
effectually  destroy  the  liberty  of  speech ;  and  the  second  clause  did  most 
completely  annihilate  the  freedom  of  the  press.  "To  combine,  conspire, 
counsel,  and  advise  together,"  was  a  natural  right  of  self-defence,  belong- 
ing to  the  people;  it  could  only  be  exercised  by  the  use  of  speech  ;  it  was 
a  right  of  self-defence  against  the  tyranny  and  oppression  of  government ; 
it  ought  to  be  exercised  with  great  caution;  and  never,  but  upon  occasions 
of  extreme  necessity.  Of  this  necessity,  the  people  are  the  only  judges. 
For  if  government  could  control  this  right ;  if  government  were  the  judge, 
when  the  necessity  of  exercising  this  right  has  arrived,  the  right  never 
•will  bfe-used;"for  government  never  will  judge  that  the  people  ought  to 
oppose  its  measures,  however  unjust,  however  tyrannical  and  despotically 
oppressive.  This  right,  although  subject  to  abuse,  like  many  other  inva- 
luable rights,  was  nevertheless  essential  to,  and  inseparable  from  the  liber- 
ties of  the  people.  The  warmest  friend  of  any  government  would  not 
contend  that  it  was  infallible.  The  best  of  governments  may  possibly 
change  into  tyranny  and  despotism.  Measures  may  be  adopted  violating 
the  Constitution,  and  prostrating  the  rights  and  principles  of  the  people. 
He  hoped  never  to  see  the  time  ;  but,  if  it  should  so  happen,  no  man  would 
deny  but  that  such  measures  ought  to  be  opposed.  But,  he  would  ask, 
how  they  could  be  effectually  opposed,  without  the  people  should  "com- 
bine, conspire,  counsel,  and  advise"- together?  One  man  could  do  no- 
thing. This  right  of  adopting  the  only  efficient  plan  of  opposition  to  uncon- 
stitutional, oppressive,  and  tyrannical  measures,  whenever  they  should 
occur,  he  hoped  never  would  be  given  up.  This  right  had  been  well  ex- 
ercised on  a  former  occasion  against  England ;  and  it  would  probably  be 
well  used  again,  if  our  liberties  were  sufficiently  endangered,  to  call  forth 
its  exertion.  But  for  the  spirited  and  energetic  exercise  of  this  right;  but 
for  the  "combining,  conspiring,  counselling,  and  advising"  together  of  the 
American  people,  these  United  States,  now  independent  and  free,  would 
have  remained  under  the  tyrannical  and  despotic  domination  of  the  British 
king.  It  had  been  said,  that  this  doctrine  leads  to  anarchy  and  confusion; 
but,  said  Mr.  Daaiel,  this  doctrine  gave  birth  and  success  to  our  revolu- 
tion; secured  our  present  liberty,  and  the  privileges  consequent  thereupon. 
The  contrary  doctrine,  said  Mr.  Daniel,  leads  to  passive  obedience  and 
non-resistance,  to  tyranny  and  oppression,  more  certain  and  more  danger- 
ous. If  a  measure  was  unpopular,  and  should  give  discontent,  it  would 
be  discussed  :  if  it  should  thereupon  be  found  to  be  tolerable,  it  would  be 
acquiesced  in.  If,  on  the  contrary,  measures  should  be  adopted  of  such 
dangerous  and  destructive  tendency,  that  they  ought  to  be  opposed,  he 
would  ask,  how  this  could  be  done  but  by  the  means  which  are  forbidden 
in  the  first  sectionxof  the  law  in  question  1  These  were  the  only  means 
by  which  liberty,  once  trampled  down  by  tyrants  and  despots,  could  be 
reinstated  :  and  if  the  general  government  continued  its  rapid  progress  of 
violating  the  Constitution,  and  infringing  the  liberties  of  the  people,  the 


94  DEBATE  ON  VIRGINIA  RESOLUTIONS. 

time  he  feared  was  hastening  on,  when  the  people  would  find  it  necessary 
again,  to  exercise  this  natural  right  of  defence. 

Mr.  Daniel  said  he  would  now  turn  his  attention  to  that  part  of  the  law 
which  affects  the  freedom  of  the  press,  in  which  the  Constitution  was  most 
palpably,  and  mosjt  dangerously  infringed.  On  this  subject,  he  said,  the 
gentleman  from  Frederic  had  contended,  that  the  Constitution  was  not 
violated  ;  that  the  common  law  was  a  part  of  the  Constitution  ;  and  that 
the  offences  enumerated  in  the  act,  were  always  punishable  at  common 
law.  If  this  be  the  fact,  said  Mr.  Daniel,  the  law  in  question  is  nugatory; 
and  the  clause  of  the  Constitution  on  this  subject,  which  had  been  read, 
was  of  no  effect.  By  the  gentleman's  common  law,  which  he  had  read, 
offences  against  the  king  and  his  government,  were  precisely  such  as  were 
enumerated  as  offences  in  this  law,  against  the  President  and  government 
of  the  United  States;  substituting  the  word  "  President,"  in  the  latter  case, 
for  the  word  "  king,"  in  the  former.  These  offences  might  be  "  by  speak- 
ing, or  writing  against  them;  or  wishing  him  (the  king  in  England,  and 
the  President  in  America,)  ill,  giving  out  scandalous  stories  concerning 
them  (the  King  and  his  government  in  England,  and  the  President  and  his 
government  in  America,)  or  doing  anything  that  may  tend  to  lessen  him 
(the  King,  or  President,  as  the  case  may  be)  in  the  esteem  of  his  subjects ; 
weaken  the  government,  or  raise  jealousies  among  the  people."  (4  Black- 
stone's  Commentaries,  page  123.)  When  our  "  sedition  law"  was  so  like 
the  law  of  England,  he  did  not  wonder  that  the  gentleman  had  supposed 
that  the  law  of  England  was  in  force  here;  one  being  the  copy  of  the 
other,  with  the  necessary  change  of  names,  and  some  other  trivial  cir- 
cumstances; nor  did  he  wonder  that  the  gentleman  should  say,  in  confor- 
mity to  that  authority,  that  "  the  liberty  of  the  press,  properly  understood, 
is  by  no  means  infringed  or  violated"  by  such  regulations,  "  but  consists 
in  laying  no  previous  restraints  upon  publications  ;"  and  is  otherwise  "  li- 
centiousness," (4  Blackstone,  p.  151  ;)  that  a  printer  may  publish  what  he 
pleases,  but  must  answer  the  consequence,  if  a  certain  set  of  men  shall 
adjudge  his  writings  to  contain  "  dangerous  and  licentious  sentiments." 
If  this  be  true,  he  said,  he  would  be  glad  to  be  informed  for  what  purpose 
was  it  declared  by  the  Constitution,  that  "the  freedom  of  the  press  should 
not  be  restrained  ;"  and  how  we  were  more  free  in  the  United  States,  than 
the  people  of  any  other  nation  whatsoever?  The  most  oppressed  of  Eu- 
rope; the  slaves  and  subjects  of  the  most  despotic  power  on  the  earth,  he 
said,  had  the  right  to  speak,  write,  and  print  whatever  they  pleased,  but 
were  liable  to  be  punished  afterwards,  if  they  spoke,  wrote,  or  printed  any- 
thing that  was  offensive  to  the  government:  that  there  was  very  little  dif- 
ference as  to  the  liberty  of  the  press,  whether  the  restraints  imposed  were 
"previous"  or  subsequent 'to  publications.  If  the  press  was  subjected  to 
a  political  licenser,  the  discretion  of  the  printer  would  be  taken  away,  and 
with  it  his  responsibility;  and  nothing  would  be  printed  but  what  was 
agreeable  to  the  political  opinions  of  a  certain  set  of  men  ;  whereas  subse- 
quent restraints  have  the  same  operation,  by  saying,  if  you  do  "  write, 
print,  utter,  or  publish,"  anything  contrary  to  the  political  opinions,  re- 
putation or  principles  o(*  certain  men,  you  shall  be  fined  and  imprisoned. 
In  vain,  he  said,  were  we  told  that  the  accused  may  prove  the  truth  of  his 


DEBATE  ON  VIRGINIA  RESOLUTIONS.  95 

writings  or  printing,  and  that  we  are  only  forbidden  to  write  or  print  false 
facts.  The  truth  was  that  it  was  not  the  facts,  but  the  deductions  and 
conclusions  drawn  from  certain  facts,  which  would  constitute  the  offence. 
If  a  man  was  to  write  and  publish  that  the  Congress  of  the  United  States 
had  passed  the  "alien  and  sedition  acts,"  that  the  provisions  of  the  said 
acts  were  in  these  words,  reciting  the  laws  as  fhey  are ;  that  the  Consti- 
tution was  in  these  words,  reciting  the  provisions  of  the  Constitution 
truly  ;  and  conclude  that  the  said  acts  violated  the  Constitution ;  that  the 
Congress  and  the  President,  in  enacting  the  same,  had  assumed  powers 
not  granted  to  them,  and  had  encroached  upon  the  liberties  of  the  people, 
who  ought  to  take  measues  "  to  defeat"  these  laws,  and  this  "  act  of  the 
President."  Here  the  facts  stated,  that  the  laws  had  been  passed,  and  that 
the  Constitution  was  in  terms  stated,  could  be  proved,  and  would  not  con- 
stitute the  offence,  but  the  inference  from  these  facts,  that  the  Congress, 
in  enacting  the  said  laws,  had  violated  the  Constitution,  assumed  powers 
not  delegated  to  them,  and  usurped  the  rights  and  liberties  of  the  people, 
in  which  usurpation  the  President  had  joined,  would  certainly  have  a  ten- 
dency "  to  defame  the  government,  the  Congress,  and  the  President,  and 
to  bring  them  into  disrepute  and  hatred  among  the  people,"  and  would 
therefore  constitute  the  offence.  The  inference  or  conclusion  from  certain 
facts  might  be  true  or  not,  and  was  mere  matter  of  opinion.  It  was  opi- 
nion then,  political  opinion,  which  was  the  real  object  of  punishment. 
The  deduction  made  from  the  facts  just  stated,  he  said,  was  in  his  opinion 
true;  the  consequence  of  which  was,  that  the  Congress  and  President  of 
the  United  States  had  not  his  confidence ;  with  him  they  were  in  "  disre- 
pute." But  he  could  not  prove  that  the  opinion  was  true,  as  a  fact ;  he 
could  offer  those  reasons  which  convinced  his  mind  of  its  truth,  but  they 
Anight  not  be  satisfactory  to  a  jury  summoned  with  a  special  regard  to  their 
political  opinions,  or  to  a  judge  of  the  United  States,  most  of  whom  had 
already  pronounced  their  opinion  on  the  subject,  either  in  pamphlets,  or 
political  instead  of  legal  charges  to  the  grand  juries,  of  the  several  circuits 
of  the  United  States;  thus  prejudging  a  constitutional  questign,  which  they 
knew  would  be  made,  if  ever  the  law  was  attempted  to  be  carried  into  effect. 
He  said  he  would  state  one  more  case  to  exemplify  his  opinion.  If  at 
the  time  of  British  oppressions,  when  the  parliament  of  England  boldly 
implied  the  right  to  make  laws  for,  and  to  tax  the  American  people,  with- 
out representation,  any  man  had  by  writing  maintained  that  representation 
and  taxation  were  inseparable,  and  that  it  was  an  usurpation  and  assump- 
tion of'  power  by  parliament  to  impose  taxes  on  the  American  colonies, 
who  were  not  represented  in  parliament,  the  fact  here  stated  would  not 
offend,  because  true ;  but  the  conclusion,  the  charge  of  usurpation,  made 
upon  the  British  government,  would  certainly  have  a  tendency  to  bring  it 
into  "  disrepute  and  hatred"  among  the  people,  as  it  did  most  effectually 
in  America,  and  would  have  constituted  the  offence.  This  opinion,  though 
now  clearly  admitted  to  be  true,  was  then  new,  and  could  not  be  proven 
true  to  an  English  judge  and  jury,  for  they  were  so  impressed  with  its 
falsity,  that  the  nation  undertook  and  carried  on  a  bloody  and  expensive 
war,  to  correct  its  error.  He  concluded  that  the  provisions  of  this  act 
abridged  and  infringed  the  liberty  of  the  press,  which  at  the  time  of  the 


96  DEBATE  ON  VIRGINIA  RESOLUTIONS. 

adoption  of  the  Constitution  had  no  other  restraint  than  the  responsibility 
of  the  author  to  the  individual  who  might  be  injured  by  his  writing  or 
printing ;  that  they  destroyed  all  inquiry  into  political  motives,  silenced 
scrutiny,  weakened  the  responsibility  of  public  servants,  and  established 
political  and  executive  infallibility ;  that  the  solicitude  discovered  by  the 
government  to  defend  itself  against  the  attacks  of  its  own  citizens,  was  an 
evidence  that  its  acts  would  not  deserve  their  confidence  and  esteem ;  that 
the  solicitude  thus  expressed  by  threats  of  fine  and  imprisonment,  to  keep 
the  President  for  the  time  being,  from  coming  "  into  disrepute,"  was  evidence 
of  a  fear  that  a  comparison  of  motives  and  views  would  prove  favourable 
to  his  competitor,  and  was  calculated  to  keep  the  real  merits  of  competition 
out  of  view,  inasmuch  as  the  merits  of  one  of  the  proposed  candidates  could 
not  be  insisted  on  to  advantage,  without  exposing  the  demerits  of  the  other, 
which  would  tend  to  bring  him  "  into  disrepute."  And  if  the  one  to  whom 
the  want  of  merit  should  be  ascribed,  should  be  President  for  the  time 
being,  thus  to  bring  him  into  "  disrepute,"  would  be  to  bring  the  person 
discussing  the  subject  into  the  pains  of  fine  and  imprisonment. 

It  had  been  contended,  said  Mr.  Daniel,  by  the  gentleman  from  Frederic, 
that  the  adoption  of  the  resolutions  would  be  an  infringement  of  the  right 
of  the  people  to  petition.  He,  Mr.  Daniel,  would  state,  that  this  right 
might  be  exercised  by  an  individual,  by  an  assemblage  of  individuals,  or 
by  the  representatives  of  the  people ;  which  last  mode  was  preferable, 
when  the  sovereignly  of  the  state,  as  well  as  the  appropriate  rights  of  the 
people  were  attacked,  as  in  the  present  case.  He  conceived,  however, 
that  the  law  in  question  had  very  much  abridged  the  right  of  the  people 
to  petition  and  remonstrate.  The  necessity  and  propriety  of  petitions  and 
remonstrances  could  not  be  seen  but  by  discussion  :  the  right  itself  could 
not  be  effectually  used,  without  " counselling  and  advising  together" 
Three  or  more  persons  would  constitute  an  "  unlawful  assembly  ;"  for  it 
would  be  easily  said,  that  they  were  unlawfully  assembled,  when  they 
intended,  by  discussing  certain  acts  of  the  President,  or  laws  of  the  govern- 
ment,  "  to  defeat  the  same,  by  inducing  the  people  to  petition  and  remon- 
strate ;  or  if  the  same  were  not  defeated,  by  virtue  of  such  petition  and 
remonstrance,  to  bring  the  government  and  President  into  "  disrepute," 
for  continuing  such  acts  and  laws  in  operation,  against  which  the  people 
had  petitioned  and  remonstrated.  But  those  things  being  offences,  and  so 
enumerated  in  one  clause  of*  the  law,  an  assembly  of  three  or  more  per- 
sons, contemplating  the  objects  just  described,  would  be  "  unlawful," 
within  the  purview  of  the  act,  and  subject  to  fine  and  imprisonment.  -Again, 
he  said,  the  dangerous  and  ruinous  tendency  of  certain  measures,  might 
not  be  observed  by  the  people  of  any  particular  district.  A  few,  however, 
might  wish  a  petition  to  be  made,  to  remove  the  grievance  of  the  measures; 
in  order  to  which,  they  would  individually  address  the  district  by  writing, 
in  which  they  would  expose  and  censure  the  evil  tendency  of  the  said 
measures,  to  excite  the  people  to  petition  and  remonstrate,  "  to  defeat"  the 
same,  or  necessarily  to  bring  the  friends  of  the  continuance  thereof  into 
"  disrepute."  This  would  be  an  offence  within  the  purview  of  the  second 
clause  of  the  law.  Thus,  said  he,  by  one  act  we  have  seen,  that  that 
clause  of  the  Constitution,  which  secures  the  right  of  speech,  of  the  press, 


DEBATE  ON  VIRGINIA  RESOLUTIONS.  97 

of  petition,  of  the  free  exercise  of  religious  opinion  to  the  people,  is  pros- 
trated in  every  respect,  except  as  it  relates  TO  religion.  And  this  last  and 
most  invaluable  right,  he  had  no  doubt  would  soon  be  invaded,  inasmuch 
as  he  had  been  informed,  that  the  friends  of  the  present  measures  had 
already  begun  to  insinuate,  that  an  "  established  church  was  one  of  the 
strongest  props  to  government ;"  and  inasmuch,  that  the  same  reasons 
might  be  urged  in  its  favour,  as  in  favour  of  the  abridgment  of  the  liberty 
of  the  press.  But  it  was  said,  that  the  press  was  still  left  free  to  print 
truth :  "  its  licentiousness  and  abuse"  are  only  forbid.  So  it  might  be 
said  of  religion :  true  religion  only  ought  to  be  tolerated  :  the  abuse  of 
religion  ought  to  be  forbidden  :  the  "  licentiousness"  of  particular  sectaries 
ought  to  be  restrained. 

He  said,  he  was  fearful  that  he  had  already  trespassed  upon  the  patience 
of  the  committee,  and  he  would  hasten  to  a  conclusion,  with  a  few  remarks 
on  the  particular  shape  and  address  of  the  resolutions.  It  had  been  ob- 
jected by  gentlemen,  that  it  was  going  too  far  to  declare  the  acts  in  ques- 
tion, to  be  "  no  law,  null,  void,  and  of  no  effect :"  that  it  was  sufficient  to 
say  they  were  unconstitutional.  He  said,  if  they  were  unconstitutional,  it  fol- 
lowed necessarily  that  they  were  "  not  law,  but  null,  void,  and  of  no  effect." 
But,  if  those  particular  words  were  offensive  to  gentlemen  he  had  no  objection 
to  any  modification,  so  the  principle  were  retained.  As  to  the  objection,  that 
they  were  improperly  addressed  to  the  other  states,  Mr.  Daniel  said,  he  sup- 
posed that  this  mode  was  extremely  eligible.  If  the  other  states  think  with 
this,  that  the  laws  are  unconstitutional,  the  laws  will  be  repealed,  and  the 
constitutional  question  will  be  settled  by  this  declaration  of  a  majority  of  the 
states  :  thereby  destroying  the  force  of  this  precedent,  and  precluding  from 
any  future  Congress,  who  might  be  disposed  to  carry  the  principle  to  a  more 
pernicious  and  ruinous  extent,  the  force  of  any  argument  which  might  be 
derived  from  these  laws.  If,  on  the  contrary,  a  sufficient  majority  of  the 
states  should  declare  their  opinion,  that  the  Constitution  gave  Congress 
authority  to  pass  these  laws,  the  constitutional  question  would  still  be 
settled  ;  but  an  attempt  might  be  made  so  to  amend  the  Constitution,  as  to 
take  from  Congress  this  authority,  which  in  our  opinion  was  so  pernicious 
and  dangerous. 

He  then  concluded  by  saying,  that  something  must  be  done:  the  people, 
were  not  satisfied :  they  expected  that  this  Legislature  would  adopt  some 
measure  on  this  subject :  that  the  Constitution  of  the  United  States  was 
the  basis  of  public  tranquillity  ;  the  pledge  of  the  sovereignty  of  the  states, 
and  of  the  liberties  of  the  people.  But,  said  he,  this  basis  of  public  tran- 
quillity, this  pledge  of  liberty  and  security  is  but  a  name,  a  mere  phantom, 
unless  it.  be  strictly  observed.  It  became  our  duty  to  watch  attentively, 
to  see  that  it  was  not  violated ;  to  see  that  it  was  equally  observed  by 
thosa  who  govern,  and  by  those  who  are  destined  to  obey.  To  attack  the 
Constitution  was  an  offence  against  society  ;  and  if  those  guilty  of  it  were 
invested  with  authority,  they  added  to  the  offence  a  perfidious  abuse  of  the 
power  with  which  they  were  intrusted.  It  was  our  duty,  said  he,  to  sup- 
press this  abuse  with  our  utmost  vigour  and  vigilance.  It  was  strange  to 
see  a  free  Constitution  openly  and  boldly  attacked  by  those  who  were  put 
in  power  under  it.  It  was  generally  by  silent  and  slow  attacks,  that  free 


98  DEBATE  ON  VIRGINIA  RESOLUTIONS. 

governments  had  progressively  changed,  till  very  little  of  their  original  tex- 
ture and  principles  remained  :  that  the  doctrine  of  implication  had  intro- 
duced innovations,  under  the  influence  and  operation  of  which,  the  freest 
governments  had  been  enslaved.  It  was  our  duty  to  guard  against  inno- 
vations. The  people  of  Virginia  had  been  attentive  to  this  subject.  The 
petitions  and  remonstrances,  which  had  been  read  to  the  committee,  proved 
that  the  people  were  seriously  alarmed  at  the  innovations  of  the  Federal 
Government.  He  said  they  proved  more :  they  proved  that  the  people 
thought  that  their  servants,  in  the  administration  of  the  Federal  Govern- 
ment, were  not  even  modest  enough  to  wait  the  increase  of  their  power 
by  progressive  change.  That  their  ambition  exceeded  the  resources  of 
the  doctrine  of  implication  :  that  their  thirst  of  power  could  not  be  satiated, 
but  by  a  direct  attack  upon  the  Constitution,  and  a  prostration  of  the  great 
rights  of  the  people.  He  said,  this  apprehension  of  the  people,  which  he 
thought  just,  would  be  satisfied.  He  thought  the  mode  proposed  by  the 
resolutions  was  most  likely  to  effect  this  purpose,  as  well  as  other  impor- 
tant purposes.  He  said,  if  they  who  were  the  representatives  of  the  people, 
would  not  act  for  them  when  called  upon,  the  people  will  speak  for  them- 
selves; and  as  the  voice  of  God,  they  would  be  heard.  He  hoped  this 
final  and  dreadful  appeal  would  never  be  necessary.  He  preferred  the 
resolutions,  and  hoped  they  would  be  adopted  by  the  committee. 

Mr.  CURETON  arose  next,  and  said,  that  he  wished  to  make  some  few 
observations.  He  confessed,  that  he  had  before  had  some  doubt  about  the 
alien-law;  but  that  the  gentleman  last  up  had  convinced  him  of  the  pro- 
priety of  it,  and  was  proceeding  to  show  how,  but  observed,  that  as  the 
committee  appeared  to  be  impatient,  he  would  not  trouble  them  any  longer, 
and  therefore  moved  that  the  committee  should  rise,  but  upon  General 
Lee's  rising  to  speak,  he  withdrew  his  motion. 

General  LEE  then  proceeded  to  observe,  that  as  the  subject  required  the 
fullest  deliberation,  he  hoped  that  all  the  papers  respecting  it  would  be  read 
that  evening,  to  prevent  any  interruption  in  the  debate  the  next  day.  By 
this  arrangement  time  would  be  saved,  and  perspicuity  in  argument  pro- 
.  moted.  It  was  too  late  in  the  evening  then,  to  enter  at  large  upon  the 
subject.  This  he  would  defer  till  the  next  day,  when  he  should  with 
frankness  and  candour  deliver  his  sentiments,  with  a  view  of  showing  the 
pernicious  tendency  of  the  resolutions  on  the  table. 

He  begged  to  know  how  many  counties  in  the  state  had  presented  peti- 
tions to  the  Assembly  on  this  subject ;  any  one  of  which  petitions,  with  the 
alien-law,  he  must  trouble  the  clerk,  he  said,  to  read,  as  he  believed  this 
law  particularly,  to  be  much  misunderstood.  He  himself  considered  it  as 
going  only  to  enable  the  chief  magistrate  to  remove  dangerous  aliens, 
thereby  preventing  the  commission  of  crime,  and  not  punishing  crimes 
committed. 

The  sedition-law,  he  said,  so  far  as  he  recollected  it,  was  free  from  the 
charges  contained  in  the  resolutions.  If  then,  on  examination,  it  was 
found  that  these  laws  were  constitutional,  the  resolutions  proposed  must 
be  rejected.  If  they  were  found  unconstitutional,  it  was  proper  to  interfere 


DEBATE  ON  VIRGINIA  RESOLUTIONS.  99 

and  restore  the  Constitution  to  its  original  purity.  In  this  salutary  wish 
he  would  cheerfully  join,  but  he  must  take  steps  becoming  a  portion  of  the 
same  people  to  take,  full  of  friendship,  full  of  mutual  respect,  and  tending 
to  perpetuate  union  and  brotherly  love,  not  disunion  and  hatred. 

Mr.  NICHOLAS  arose  next,  and  said  that  the  gentleman  last  up  wished 
to  save  time,  by  having  all  the  papers  read  that  evening,  but  he  wished  to 
know  how  that  would  save  time?  The  gentleman  had  said  too  that  the  alien 
law  extended  to  prevent  only,  and  not  to  punish  crimes.  Mr.  Nicholas 
asked,  if  banishment  was  no  punishment?  He  had  always  understood, 
he  said,  that  it  was ;  and  then  observed,  that  he  should  have  been  glad 
that  the  gentleman  had  been  present  from  the  commencement  of  the  dis- 
cussion, that  he  might  perfectly  have  understood  the  nature  of  it. 

Mr.  John  Taylors  resolutions  were  then  read,  together  with  those  laid 
upon  the  table  by  other  gentlemen,  and  the  memorial  from  the  people  of 
Caroline  County. 

Mr.  BROOKE  then  arose,  and  observed,  that  labouring  under  all  the 
diffidence  that  a  person  unaccustomed  to  public  speaking  would  naturally 
feel,  in  delivering  his  sentiments  upon  so  momentous  an  occasion  as  the 
present,  he  was  sensible  of  the  disadvantage  he  must  have  laboured  under, 
in  delivering  his  sentiments  upon  the  subject  the  day  before ;  and  on  this 
account,  he  felt  more  sensibly  the  attack  made  upon  him  by  his  colleague, 
and  the  attempt  made  by  him  to  distort  the  observations,  which,  in  the 
midst  of  his  confusion  and  embarrassment,  Mr.  Brooke  said,  had  fallen 
from  him.  These  observations  that  gentleman  had  undertaken  to  carica- 
ture. A  more  proper  person  for  a  task  of  this  kind  could  not  have  under- 
taken it.  He  would  do  justice  to  every  subject  he  ever  did  undertake. 
Mr.  Brooke  then  said,  that  he  would  proceed  to  repeat  to  the  committee 
his  observations  just  as  they  were  expressed,  which,  notwithstanding  the 
diffidence  he  felt,  on  the  occasion,  he  perfectly  recollected ;  and  he  believed 
that  other  gentlemen,  not  disposed  to  distort  his  meaning,  would  agree  with 
him  in  his  statement.  He  had  observed,  he  said,  that  he  was  opposed  to 
the  resolutions  offered  by  the  gentleman  from  Caroline,  however  modified ; 
that  he  was  under  no  instructions ;  and  that  if  the  people  of  his  county 
should  be  so  degenerate  (to  the  best  of  his  recollection  was  the  term  ;  but  if 
the  term  debased,  which  his  colleague  had  stated  as  a  stronger  expression, 
would  suit  his  purpose  better,  it  might  be  so)  as  to  instruct  him  to  vote  for 
resolutions  having  so  dangerous  and  alarming  a  tendency  as  those  referred 
to,  he  should  go  into  mourning ;  he  should  bid  adieu  to  legislation,  and 
seek  an  asylum  in  some  other  region  of  the  globe,  amongst  a  race  of 
mortals  who  had  more  respect  for  peace  and  order,  and  who  set  a  higher 
value  upon  the  blessings  of  good  government.  Mr.  Brooke  then  concluded 
by  observing,  that  he  had  thus  recapitulated  the  observations  used  by  him, 
no  less  to  gratify  his  colleague  who  had  called  upon  hirq,  than  that  the 
people  of  his  county  might  know  that  these  were  his  sentiments. 

Mr.  BOOKER  then  moved  that  the  committee  should  rise. 


100  DEBATE  ON  VIRGINIA  RESOLUTIONS. 

Mr.  JOHN  TAYLOR  hoped  that  the  committee  would  not  rise,  but  that 
they  would  proceed.  Several  days,  he  said,  had  already  been  spent  in 
the  discussion  of  the  business  before  them  ;  and  much  more  time  might  be 
spent,  unless  they  should  adopt  a  different  mode.  They  had,  until  then, 
been  in  the  habit  of  receiving  only  one  speech  a  day;  and  the  only  way  to 
dispatch  the  business  he  thought,  would  be  to  meet  early  and  sit  late. 

Mr.  GEORGE  K.  TAYLOR  said,  that  he  intended  to  say  something  further 
upon  the  subject,  but  wished  not  to  hurry  the  committee. 

Mr.  COWAN  also  observed,  that  he  intended  to  deliver  his  sentiments  to 
the  committee,  tending  to  show  that  the  alien  law  was  constitutional,  but 
wished  not  to  press  the  matter  then. 

Mr.  NICHOLAS  hoped  that  the  committee  would  not  rise.  They  had  as 
yet  proceeded  but  slowly.  He  hoped,  therefore,  that  the  gentleman  last 
up  would  proceed  :  he  should  be  glad  to  hear  him. 

The  same  being  also  requested  by  others  at  the  same  time, 

Mr.  COWAN  proceeded,  by  observing  that  much  had  been  said  upon  the 
subject  already.  It  was  a  question  of  great  importance,  and  the  great 
attention  which  had  been  given  by  the  committee,  was  a  proof  of  the 
talents  of  the  speakers.  He  confessed  that  he  had  no  such  claim,  but 
came  forward  on  another  ground.  He  felt  it  a  duty  to  his  constituents 
and  the  whole  community,  to  engage  in  the  discussion.  He  had  noticed, 
he  said,  that  the  observations  of  the  gentleman  from  Prince  George  had 
been  objected  to  on  one  particular  ground,  that  of  their  mingling  the  affairs 
of  France  with  the  subject  of  the  laws  under  consideration.  But  he  (Mr. 
Cowan)  thought  that  could  not  be  avoided.  The  present  question,  he  said, 
had  its  root  in  French  transactions.  The  rights  of  citizens  and  aliens,  he 
thought,  had  been  confounded ;  and  in  order  to  have  a  clear  apprehension 
of  them,  a  standard  ought  to  be  fixed  upon  to  try  them.  That  standard 
he  pronounced  to  be,  as  to  citizens,  the  Constitution;  as  to  aliens,  the  law 
of  nations.  Every  sovereign  nation,  he  said,  was  possessed  of  certain 
rights.  Amongst  them  the  right  to  govern  aliens  was  a  perfect  right.  It 
vested  a  power  to  restrain  them.  That  right,  he  said,  contained  two 
things ;  the  first  was  that  of  obliging  aliens  to  depart,  the  second  was  to 
allow  them  to  remain. 

An  alien,  said  Mr.  Cowan,  entering  into  a  country,  as  the  condition  of 
such  entrance,  doth  agree  to  submit  to  the  laws  of  its  sovereignty.  Sub- 
mitting to  them  did  imply,  that  when  required,  he  was  bound  to  retire. 
Where  did  the  exercise  of  this  power  rest?  By  the  Constitution,  the  power 
to  exclude  remains  in  the  states  for  a  limited  time.  It  was  true  that  the 
powers  not  particularly  granted  are  reserved.  It  had  been  said  that  the 
states  were  sovereign.  It  was  so,  but  not  in  the  latitude  contended  for. 
For,  if  it  were  so,  the  clause  in  the  Constitution  respecting  the  migration 
and  importation  of  persons,  was  an  argument  to  the  contrary.  How  did 
the  states  derive  this  right  1  If  they  had  it  before  the  adoption  of  the  Consti- 
tution, the  Constitution  gave  it  to  no  purpose.  It  was  a  supererogation. 
By  the  adoption  of  the  Constitution,  Mr.  Cowan  conceived,  the  states 


DEBATE  ON  VIRGINIA  RESOLUTIONS.  lOl 


excepted  that  right.  Where  was  it  then  ?  It  was  with  the  peopl 
in  order  to  the  distribution  of  powers  therein  specified,  and  for  that  pur- 
pose, had  resumed  their  full,  their  native  rights.  That,  indeed,  was  a 
matter  of  moment.  For,  could  they  once  ascertain  where  the  right  then 
was  vested,  they  might  then  find  the  key  to  unlock  the  Constitution,  so  as 
to  find  the  power  to  pass  an  alien-law.  If  Congress  had  not  the  right,  the 
states  must  have  a  paramount  right  to  protect  aliens.  If  Congress  had  it 
not,  the  states  could  suffer  aliens  to  remain  within  them,  in  despite  of  Con- 
gress. Could  the  states  then  confer  a  perfect  right  on  aliens?  If  they 
could  not,  they  had  no  power  to  keep  them  here.  For,  if  they  could  keep 
them  here  one  hour,  they  might  keep  them  here  until  1808.  But,  Mr. 
Cowan  said,  he  would  attempt  to  show  that  the  states  had  no  such  right. 
He  hoped  gentlemen  would  answer  him  on  that  point.  A  state  could 
confer  a  perfect  right  only  in  two  ways :  First,  by  naturalization  ;  but 
this  subject  was  conveyed  to  Congress.  Secondly,  by  treaty  with  the 
state  from  which  the  alien  comes ;  but  this  power,  too,  was  vested  in  Con- 
gress, and  prohibited  to  the  states.  Could  an  act  of  Assembly  confer  a 
perfect  right?  No;  because,  "a  perfect  right  is  that  to  which  is  joined 
the  right  of  constraining  those  who  refuse  to  fulfil  the  obligation  resulting 
from  it."  An  alien  could  not  oblige  a  compliance  with  the  terms  of  it. 
It  had  been  said  that  the  alien-law  violated  that  part  of  the  Constitution 
which  gives  the  state  a  right  to  exclude  aliens,  if  it  thinks  proper.  But,  if 
the  stale  could  not  give  the  right  to  them  to  remain,  it  must  be  with  Con- 
gress, and  therefore  no  violation.  By  the  Constitution,  a  power  was  given 
to  Congress  to  repel  and  to  protect  against  invasion,  and  to  make  any  law 
to  carry  its  measures  into  effect.  What  could  be  the  meaning,  then,  of 
those  clauses?  The  terms  to  repel  invasion,  and  protect  against  invasion, 
gave  different  powers.  Could  it  be  thought  proper,  that  the  general  go- 
vernment should  have  no  power  to  defeat  a  plan  before  it  was  matured  ? 
It  must  be  inferred,  then,  from  such  words,  that  Congress  had  the  power 
to  take  such  measures  as  would  secure  the  people.  There  was  no  neces- 
sity, then,  of  resorting  to  the  last  clause  of  the  eighth  section  of  the  first 
article,  for  the  power  in  question.  The  general  powers  of  Congress  would 
be  sufficient  to  give  it.  When  bound  to  accomplish  an  end,  are  not,  said 
he,  the  means  included?  Or  are  they  withheld?  But,  if  the  state  had 
no  such  power,  it  was  in  Congress.  For,  if  it  was  not  there,  where  was 
it?  Thus  much,  Mr.  Cowan  said,  for  the  constitutionality  of  the  alien- 
law.  He  proceeded  next  to  discuss  its  nature.  It  had  been  said,  that  it 
blended  different  powers.  But,  Mr.  Cowan  said,  that  the  Constitution  of 
the  United  States,  in  his  opinion,  was  not  such  an  one  as  that  the  powers 
of  government  were  necessarily  kept  separate  and  distinct.  It  was  true, 
they  were  so  in  the  state  Constitution  ;  but  that  they  are  not  so  in  the 
former,  was  proved  by  the  instance  of  the  President's  ratifying  a  treaty. 
For,  as  the  treaty  when  made,  becomes  a  law,  his  ratification  has  the 
effect  of  a  legislative  act.  He  must  often  act  with  a  union  of  powers. 
By  approving  laws,  particularly,  he  legislates ;  and  in  cases  where  no 
person  is  pointed  out  by  a  law  to  enforce  its  execution,  the  President  per- 
haps  is  the  proper  person  to  do  it.  This  is  proved  by  that  clause  in  the 
Constitution  which  directs,  that  the  President  shall  take  care  that  the  laws 


102  DEBATE  ON  VIRGINIA  RESOLUTIONS. 

be  'faithfully  executed.  Therefore,  even  if  the  President  had  not  been 
named  to  carry  the  alien-law  into  effect,  by  the  Constitution,  he  must  have 
done  it  so  far  as  was  executive.  Two  powers,  then,  are  united  by  the 
Constitution  in  him. 

Mr.  Cowan  then  observed,  that  if  the  committee  could  be  convinced  that 
the  law  was  constitutional,  they  certainly  must  conceive  the  wisdom  of 
Congress  adequate  to  the  policy  of  such  a  law.  The  alien-enemy  laws 
passed  by  the  Legislature  of  this  state,  and  also  by  the  Congress  of  the 
United  States,  had  been  admitted  by  the  gentleman  from  Caroline  to  be 
necessary.  He  (Mr.  Cowan]  considered  that  law  of  Congress  as  being 
very  analogous  to  the  law  now  the  subject  of  debate.  For,  if  such  enemy- 
alien  law  be  necessary  in  a  state  of  war,  the  law  of  Congress  now  under 
the  consideration  of  the  committee,  under  defensive  operations,  was  neces- 
sary in  proportion.  It  had  been  urged  loo,  that  aliens,  by  the  law  of 
nations,  had  the  same  rights  as  citizens.  But  that  the  alien  was  so  en- 
titled, he  said,  was  necessary  to  be  shown.  There  certainly  was  a  dis- 
tinction between  the  alien  and  citizen.  An  alien  is  not  subject  to  all  the 
laws  of  a  country,  but  such  only  as  regulated  the  affairs  of  private  life. 
Mr.  Cowan  then  read  the  seventh  amendment  to  the  Constitution,  contain- 
ing the  principles  and  regulations  which  were  to  govern  in  criminal  cases. 
Gentlemen  had  derived  rights  to  aliens  under  this  clause,  and  seemed  to 
rely  much  upon  the  word  persons  used  in  this  clause.  But  he  (Mr.  Cowan) 
asserted  that  aliens  were  entitled  to  their  privileges  from  a  principle  of  the 
law  of  nations,  and  not  under  the  Constitution,  as  a  party  thereto.  For 
the  alien  could  not  be  made  a  soldier,  he  owing  allegiance  elsewhere. 
The  expressions,  too,  used  in  the  seventh  amendment,  "  except  in  cases 
arising  in  the  land  or  naval  forces,  or  in  the  militia  when  in  actual  service, 
in  time  of  war  or  public  danger,"  prove  that  aliens  were  not  the  persons 
contemplated  by  that  clause,  but  citizens,  they  only  being  subject  to  those 
kinds  of  service.  Indeed,  an  Indian  or  a  negro  might,  by  such  doctrines 
as  gentlemen  held,  be  as  well  entitled  as  an  alien.  But  none  of  these  were 
parties  to  the  Constitution.  Gentlemen  who  argued  thus,  would  prove  too 
much  for  an  alien.  They  would  place  him  in  a  better  situation  than  our 
own  citizens.  It  had  been  said  banishment  is  a  punishment.  But  banishment 
of  a  citizen,  said  Mr.  Caivan,  exists  not  under  the  Constitution.  He  said, 
also,  that  an  alien  on  coming  into,  admitted  the  right  of  sovereignty  of  the 
country  over  him.  This  was  the  condition  of  his  admission  into  every 
country :  to  illustrate  which,  he  repeated  the  observations  which  he  had 
before  made  upon  that  point.  He  also  recapitulated  his  preceding  argu- 
ments about  perfect  right,  and  then  observed  that  it  had  been  said  that  this 
Assembly  ought  to  adopt  the  resolutions  before  them,  and  not  use  force  ; 
but  by  means  of  them,  produce  an  effect  on  the  general  government.  And 
it  was  further  said  that  the  compact  was  between  states.  But,  Mr.  Cowan 
said,  he  could  not  agree  with  gentlemen  in  these  points.  What  effect 
could  the  resolutions  have?  It  ought  to  be  supposed  that  Congress  had 
wisdom :  that,  if  they  thought  they  were  right  they  would  not  recede.  If 
they  thought  they  were  wrong,  he  believed  they  would  endeavour  to  do 
what  was  right.  He  thought,  too,  that  the  compact  contained  an  union 
both  of  the  states  and  people.  What,  said  he,  would  be  the  effect  of  de- 


DEBATE  ON  VIRGINIA  RESOLUTIONS.  103 

claring  the  laws  null  and  void  ?  The  principle  would  extend  to  all  laws 
of  Congress  whatever.  What  then  would  be  the  result?  It  would  shake 
the  foundations  of  tranquillity.  It  would  shake  the  faith  of  the  people  in 
their  government,  as  well  as  the  faith  of  foreign  nations  in  it.  It  would  be 
setting  up  powers  paramount  to  the  government.  Because  a  few  of  the 
people  had  directed  them  to  act  upon  the  subject,  could  they  think  they 
had  the  power?  Had  the  people  empowered  them  to  declare  the  laws  null 
and  void  ?  On  the  contrary,  if  the  people  on  their  return,  should  hold  a 
different  language,  how  could  the  members  of  this  House  justify  themselves 
to  the  people  ?  Would  it  be  by  telling  them  that  they,  their  representatives, 
had  all  powers?  He  again  stated  the  consequence  of  exercising  such  a 
power.  And  if  the  compact  were  to  be  dissolved,  he  asked,  what  would  be 
the  consequences?  The  resolutions  would  give  a  pause  to  the  acts  under 
consideration.  For  they  recommended  to  the  people  to  obey  or  not  obey. 
And  if  without  power  from  the  people,  this  Assembly  should  attempt  to 
exercise  their  rights  to  control  the  general  government,  he  asked  what 
would  be  the  consequences  ?  He  enumerated  them  much  at  large,  and 
concluded  with  an  earnest  request  that  they  would  not  adopt  the  mode  pro- 
posed by  the  resolutions. 

On  motion,  the  committee  then   rose,  the  chairman  reported  progress, 
asked,  and  had  leave  for  the  committee  to  sit  again. 


IN  THE  HOUSE  OF  DELEGATES, 

Thursday,  December  20,  1798. 

The  House  resolved  itself  into  a  committee  of  the  whole  House,  on  the 
state  of  the  commonwealth,  Mr.  Breckenridgein  the  chair,  when  Mr.  John 
Taylor's  resolutions  being  still  under  consideration, 

General  LEE  arose,  and  said  that  he  was  sorry  he  had  been  prevented 
from  attending  his  duty  in  the  House  earlier  in  the  session.  He  had 
thereby  lost  the  opportunity  of  combating  the  pernicious  system  in  opera- 
tion  at  its  commencement,  as  well  as  that  of  obtaining  the  information 
which  previous  discussion  must  have  afforded.  Disadvantageously,  how- 
ever, as  he  felt  himself  situated,  he  could  not  refrain  from  presenting  to 
the  committee  those  reasons  which  influenced  him  in  opposing  the  resolu- 
tions. There  were,  he  believed,  three  propositions  on  the  table :  the 
resolutions  proffered  by  the  worthy  member  from  Caroline :  counter  reso- 
lutions proposed  by  his  worthy  friend  from  Prince  George,  and  a  resolu- 
tion proposed  by  a  worthy  member  from  Prince  William.  To  the  counter- 
resolutions  he  gave  his  cordial  assent:  to  the  last  proposition  he  also 
assented,  as  it  breathed  a  spirit  congenial  to  true  American  policy,  and 
afforded  an  innocent  way  of  disposing  of  the  resolutions  from  Caroline. 
But  inasmuch  as  the  rejection  of  the  first  resolutions  would  necessarily 
involve  the  approbation  of  those  proposed  in  opposition,  he  should  apply 
his  observations  to  effect  that  object  only. 


104  DEBATE  ON  VIRGINIA  RESOLUTIONS. 

General  Lee  then  contended,  that  the  ruling  principle  in  the  resolutions 
was  erroneous.  They  asserted  as  a  fundamental  position,  that  the  exist- 
ing Constitution  was  a  compact  of  states.  He  denied  this  position :  de- 
claring the  Constitution  to  be  a  compact  among  the  people.  The  ancient 
confederation  was  a  compact  among  the  states  ;  it  was  so  in  style,  manner, 
and  power.  But  the  government  under  which  we  now  live,  was  precisely 
the  reverse.  What  is  its  style?  '.'We  the  people."  What  is  its  man- 
ner? Executed  by  functionaries  appointed  mediately  or  immediately  by 
the  people.  What  is  its  power?  That  of  the  people;  derived  from  them, 
and  based  upon  them.  How  then  could  it  be  asserted  that  the  present 
Constitution  is  a  compact  of  states  ?  And  would  the  committee  sanction 
by  their  approbation,  a  declaration  palpably  wrong?  It  was  true,  there 
was  to  be  drawn  from  the  Constitution  some  faint  support  for  this  errone- 
ous construction.  The  Senate,  one  branch  of  the  Federal  Government,  was 
elected  by  the  states,  as  states.  This  deviation  from  the  general  system 
could  not  be  relied  on  to  destroy  the  system  itself.  It  was  the  result  of 
our  peculiar  situation.  The  smaller  states  could  not  be  induced  to  re- 
nounce their  existing  equality  entirely.  It  was  necessary  to  compromise, 
in  order  to  obtain  the  happy  Constitution  we  possess. 

To  this  compromise  was  attributed  the  federal  feature  just  mentioned. 
But  this  partial  departure  from  the  general  principles  of  the  system,  could 
not  be  regarded  as  covering  the  broad  ground  taken  in  the  resolutions. 
All  the  branches  of  government  ought  to  be  elected  by  the  states,  as  states, 
to  maintain  the  position  assumed. 

This  was  not  the  case,  and  consequently  the  resolutions  were  radically 
erroneous. 

General  Lee  then  proceeded  to  the  examination  of  the  alien  and  sedition 
laws.  He  began  with  the  alien  law,  which  he  contended  was  not  a  breach 
of  the  Constitution.  If  the  law  was  unconstitutional,  he  admitted  the 
right  of  interposition  on  the  part  of  the  General  Assembly ;  nay,  it  was 
their  duty,  and  every  good  citizen  was  bound  to  uphold  them,  in  fair 
and  friendly  exertions,  to  correct  an  injury  so  serious  and  pernicious.  He 
would  himself  cordially  contribute  his  humble  mite;  but  even  in  that 
case,  he  should  adopt  a  very  different  manner  from  that  contained  in  the 
resolutions.  Friendship  should  be  the  ground,  friendship  the  dress,  and 
friendship  the  end  of  his  measures.  The  resolutions  inspired  hostility,  and 
squinted  at  disunion. 

The  objections  made  to  the  alien-law  were:  1st,  It  transcends  the 
power  of  Congress.  2d,  It  violates  that  article  of  the  Constitution  which 
leaves  to  the  states  the  right  of  admission  of  emigrants.  3d,  It  deprives 
an  alien-friend  of  trial  by  jury.  4th,  It  unites  legislative,  executive,  and 
judicial  powers.  To  the  two  last,  he  said,  he  should  particularly  attend, 
as  gentlemen  preceding  him  had,  he  understood,  fully  noticed  the  two 
first.  General  Lee  read  some  passages  from  the  law,  tending  to  show 
that  the  prevention  of  commission  of  crime,  and  not  the  punishment  of  a 
crime  committed,  was  its  only  object. 

He  then  proceeded  to  show  that  trial  by  jury  could  only  apply  on 
charge  of  crime  committed.  It  was  ludicrous  to  attempt  to  apply  it  in  the 
alien-law ;  arid  it  was  consequently  absurd  to  stigmatize  that  law,  and 


DEBATE  ON  VIRGINIA  RESOLUTIONS.  105 

those  who  framed  it,  with  violation  of  the  Constitution,  by  denial  of  trial 
by  jury,  where  trial  by  jury  could  not  possibly  apply.  The  law  was  in 
its  nature  preventive,  and  sprung  from  the  right  of  duty  of  government  to 
protect  the  states  from  invasion.  The  exercise  of  this  right  belonged  to 
Congress,  and  they  were  the  sole  judges  of  the  expediency.  In  their  de- 
cision, all  ought  to  acquiesce.  In  case  of  error  or  vice,  the  revolving 
elections  presented  a  proper  corrective,  which  could  be  applied  to  without 
commotion  or  disturbance ;  and  which,  fairly  and  judiciously  applied, 
could  not  fail  to  cleanse  the  body  politic. 

During  the  debate,  it  had  been  well  observed  by  the  worthy  member 
from  Lunenburg,  that  the  injustice  of  France  might  be  considered  as  the 
root  of  these  measures,  and  that  it  was  not  easy  to  discuss  the  latter, 
without  reference  to  the  former.  This  remark  was  certainly  true,  and 
must  have  been  felt  by  every  gentleman  engaged  in  the  discussion.  In 
case  of  an  invasion,  a  measure  dependent  only  on  its  practicability,  of 
which  practicability  our  venomous  and  insatiable  foe  was  the  sole  judge, 
what  keen  and  operative  aid  might  not  be  afforded  by  the  numerous  aliens, 
long  fostered  by  American  hospitality,  and  anxious  for  an  opportunity  to 
display  their  ingratitude,  if  we  might  be  permitted  to  form  an  opinion  of 
their  future  conduct  by  the  ^eal  with  which  they  laboured  to  expel  from 
the  breasts  of  our  citizens  all  respect  for  religion  afcd  government;  pre- 
paring, as  far  as  was  in  their  power,  the  American  people  for  the  reaction 
of  the  French  and  Saint  Domingo  tragedies. 

Ought  not  then  Congress  to  have  taken  measures  to  rid  their  country 
of  such  eventual  misery  ?  It  was  their  first  duty  so  to  do ;  and  supine- 
ness  on  their  parts  would  have  been  criminal. 

But  it  seems  that  aliens  have  rights  under  our  Constitution.  It  was 
wonderfully  kind,  he  said,  in  our  fathers  to  devote  their  time  and  money 
to  the  care  of  the  Turk,  Gaul,  and  Indian,  when  the  proper  object  was 
that  of  their  children.  This  spurious  doctrine,  however  confidently  as- 
serted, was  not  credited  by  the  gentlemen  themselves.  They  might  impose 
on  others,  but  the  discernment  of  their  own  minds  forbade  success  in  im- 
posing on  themselves.  An  alien  would  claim  no  right  in  this  country, 
unless  he  could  show  a  treaty  for  it;  excepting  his  participation  in  the 
usual  rights  of  citizens,  which  he  held  upon  courtesy,  and  which  courtesy 
could  be  withdrawn  at  the  pleasure  of  the  sovereign  power.  Be  done 
then,  he  said,  with  all  these  pretences.  They  were  groundless,  and  seized 
only  to  excite  more  and  more  the  begun  ferment. 

The  sedition-law,  General  Lee  said,  was  also  declared  to  be  a  violation 
of  the  Constitution.  Let  us,  said  he,  examine  it.  Let  us  refer  to  the 
clause  in  the  Constitution  securing  the  freedom  of  the  press,  which  we  are 
told  by  the  above  law  is  abridged.  By  the  law  you  must  conspire  to  op- 
pose a  measure  of  government ;  or  utter,  write,  or  publish,  with  the  inten- 
tion of  opposing,  or  exciting  opposition  to  government.  The  publication 
must  also  be  false,  malicious,  and  scandalous. 

General  Lee  then  asked,  if  government  was  worth  preserving?  If 
not,  let  it  be  annulled.  If  it  was,  deny  not  to  it,  he  said,  the  means  of 
preserving  itself.  The  Constitution  must  be  very  defective,  if  it  held  .not 
the  power  of  self-preservation.  It  was  not  defective ;  and  a  fair  construe- 


106  DEHATE  ON  VIRGINIA  RESOLUTIONS. 

tion  of  it  would  warrant  the  sedition-law.  Government  with  us  depended 
for  its  existence  upon  the  affections  of  the  people.  In  its  preservation  the 
people  were  interested.  Any  attempt,  by  the  publication  of  falsehood  to 
discredit  government,  and  thereby  to  impair  the  public  confidence  in  it, 
was  an  offence  against  the  people;  it  was  wrong  in  morality,  and  ought 
to  be  punished.  What  honest  man  would  complain  of  a  law,  which 
forbids  the  propagation  of  malice,  slander,  and  falsehood  1  What  good 
citizen  would  not  delight  in  a  law,  which,  while  it  punishes  the  above 
vices,  tends  to  perpetuate  the  government  of  his  choice?  And  yet  a  law 
of  that  sort,  he  said,  afforded  a  fertile  topic  of  abuse  and  misrepresenta- 
tion. 

General  Lee  then  observed  that,  "  thou  shalt  not  lie,"  was  one  of  the 
ten  commandments :  it  was  one  of  the  injunctions  of  the  sedition-law. 
Whoever  considered  the  freedom  of  speech  abridged  by  the  divine  law  ? 
No  man  unless  lunatic;  nor  could  the  freedom  of  the  press  be  so  deemed, 
without  a  misconstruction  of  the  Constitution,  or  of  the  sedition-law. 

This  state,  he  said,  had  from  the  Revolution  enacted  laws  of  the  same 
sort.  In  1776,  a  committee  was  appointed  for  the  revision  of  our  laws. 
Messrs.  Pendleton,  Wythe,  Jefferson,  Mason  and  Lee,  composed  the 
committee;  able,  honourable,  and  eminent  citizens.  Among  their  pro- 
posed bills,  was  to  be  found  one  on  the  subject  of  libels.  A  reference  to 
this  bill  would  show  its  minute  resemblance  to  the  sedition-law.  Autho- 
rity such  as  that  just  quoted,  General  Lee  said,  could  not  fail  in  guarding 
the  committee  from  accrediting  the  intemperate  censures  issued  against 
Congress.  He  would  proceed,  he  said,  to  another  authority  in  point  of 
time  and  subject,  though  one  of  the  respectable  gentlemen  just  named, 
and  the  very  one  of  all  others  to  whom  gentlemen  on  the  other  side  at- 
tached most  weight.  Mr.  Jefferson,  in  his  correspondence  with  Mr.  Ma- 
dison, respecting  the  new  Constitution,  maintains,  said  General  Lee,  the 
doctrine  we  contend  for.  He  (Mr.  Jefferson]  expressly  says,  that  in  pre- 
venting the  abridgment  of  the  freedom  of  the  press,  punishment  for 
uttering  falsehoods  ought  not  to  be  inhibited.  (3  Jeff.  Mem.  25.)  The 
same  doctrine  is  expressed  by  the  same  gentleman,  in  his  Notes  on  Vir- 
ginia. (Notes  on  Va.,  Appendix  No.  II.,  p.  233.) 

However,  General  Lee  said,  he  would  refer  to  an  authority  still  higher, 
the  General  Assembly  of  this  state  in  1776.  That  august  body,  the 
champions  of  American  rights,  the  patriots  who  composed  our  state  Con- 
stitution, passed  a  law  on  this  subject  in  the  following  words :  "  That,  if 
any  person  residing,  or  being  within  this  commonwealth  shall,  from  and 
after  the  publication  hereof,  by  any  word,  open  deed,  or  act,  advisedly 
and  willingly,  maintain  and  defend  the  authority,  jurisdiction,  or  power  of 
the  king,  or  parliament  of  Great  Britain,  the  person  so  offending,  being 
legally  convicted  thereof,  shall  be  punished  with  fine  and  imprisonment, 
to  be  ascertained  by  a  jury,  so  that  the  fine  exceed  not  the  sum  of  twenty 
thousand  pounds,  nor  the .  imprisonment  the  term  of  five  years  :"  "  and 
that  any  person  who  shall  maliciously  and  advisedly  endeavour  to  excite 
the  people  to  resist  the  government  of  this  commonwealth  as  by  law  esta- 
blished, or  persuade  them  to  return  to  a  dependence  upon  the  crown  of 
Great  Britain,  or  who  shall  maliciously,  or  advisedly  terrify  and  discou- 


DEBATE  ON  VIRGINIA  RESOLUTIONS.  107 

rage  the  people  from  enlisting  into  the  service  of  the  commonwealth,  or 
dispose  them  to  favour  the  enemy,  every  person  so  offending,  and  being 
thereof  legally  convicted,  shall  be  punished  with  fine  and  imprisonment 
as  aforesaid." 

These  men,  General  Lee  said,  formed  our  Constitution,  and  these  men 
passed  the  law  of  which  the  quotation  is  an  extract.  They  must  have 
understood  their  own  work ;  they  could  not  mean  to  violate  the  Constitu- 
tion. The  law  then  was  not  unconstitutional  in  their  opinions,  and  yet  it 
must  be  so,  if  the  doctrine  now  advanced  be  accurate. 

The  Constitutions  of  the  state  and  of  the  United  States,  provide  in  terms 
equally  strong  for  the  security  of  the  freedom  of  the  press.  The  law 
above  quoted,  passed  by  the  state,  and  the  sedition-law,  passed  by  Con- 
gress, were  of  the  same  sort  in  word,  spirit,  and  object.  If  the  first  be 
no  violation  of  the  state  Constitution,  the  second  could  not  be  deemed  a 
violation  of  the  United  States  Constitution.  Other  laws  passed  by  the 
state,  all  tending  to  justify  the  opinions  which  he  and  those  who  thought 
with  him  held,  General  Lee  said,  might  be  referred  to;  especially  the 
law  against  the  divulgers  of  false  news  and  the  law  against  treason.  It 
had  been  fully  observed  by  the  worthy  member  from  Prince  George,  that 
the  word  "  freedom"  of  the  press  had  a  definite  meaning;  and  he  had 
proved  incontestably  what  this  technical  meaning  was,  to  wit,  a  freedom 
from  every  restraint  in  printing,  but  not  a  freedom  from  punishment,  if 
the  printing  was  in  its  tendency  injurious  to  an  individual  or  to  the  com- 
munity. 

It  appeared  plainly  to  his  mind  then,  that  the  resolutions  asserted  an 
untruth,  when  they  charged  the  two  laws  with  violation  of  the  Constitu- 
tion. But  it  seems,  he  said,  that  the  laws  are  inexpedient  and  unwise. 
Of  their  expediency  and  wisdom  the  people  have  made  Congress  the 
sole  judge.  They  have  the  best  information ;  their  object  must  be  the 
public  good,  and  it  was  presumable  that  the  measure  was  wise  and  neces- 
sary, or  their  adoption  would  not  have  taken  place.  He  would  not,  he 
said,  examine  the  question  of  expediency  of  the  laws,  but  would  examine 
the  expediency  of  the  resolutions.  Admitting  for  a  moment,  that  the  laws 
were  unconstitutional,  he  contended  that  the  course  pursued  by  the  reso- 
lutions was  inadmissible.  Prudence  frowned  on  the  indecorum  and  hos- 
tility which  their  face  showed,  nor  was  it  to  be  presumed  that  contumely 
to  the  sovereignty  of  the  Union  was  the  likeliest  way  to  obtain  a  repeal  of 
the  laws.  The  very  reverse  must  happen.  Why,  then,  recur  to  such 
an  expedient,  if  the  object  of  repeal  be  the  real  object  ?  He  hoped  that 
he  should  be  pardoned,  he  said,  when  he  suspected  that  repeal  of  the 
laws  was  not  the  leading  point  in  view.  Promotion  of  disunion  and  sepa- 
ration of  the  states,  struck  him  as  objects  which  the  resolutions  covered. 
What  evils  so  great  could  befall  the  American  people?  Every  measure 
squinting  at  such  disasters  ought  to  be  spurned  with  zeal.  Let  us,  then, 
said  he,  put  our  veto  on  the  resolutions.1  Was  an  individual,  he  observed, 
to  apply  to  his  friend  for  redress  of  some  supposed  injury,  the  application 
would  be  conveyed  in  terms  polite  and  friendly.  So  ought  it  to  be  when 
a  state  applied  to  the  United  States.  But  why  not  wait  for  the  operation 
of  the  constitutional  checks?  The  united  system  was  made  by  the  whole 


108  DEBATE  ON  VIRGINIA  RESOLUTIONS. 

people,  for  the  management  of  all  affairs  national.  The  same  people 
instituted  state  governments,  for  the  management  of  all  state  affairs. 
These  systems  held  concurring  jurisdiction  over  some  subjects,  and  of 
course  might  occasionally  interfere.  Who,  then,  was  the  proper  arbiter 
between  them  ?  Not  the  state  government :  the  people  had  given  them 
no  such  power.  The  people  themselves,  the  creators  of  both  systems, 
were  the  proper  judges.  Their  decision  was  obtainable  under  the  rules  of 
the  Constitution  in  the  revolving  elections.  The  judiciary  also  was  a 
source  of  correction  of  legislative  evil;  a  source  fixed  by  the  Constitution, 
and  adequate  to  cure  violations  of  the  same  like  those  now  alleged.  The 
state  legislatures  might  also  act,  but  it  must  be  by  proposing  amendments 
to  the  Constitution  in  either  way  therein  delineated. 

If  then  the  laws  were  deemed  unconstitutional,  let  the  question,  he  said, 
be  left  to  the  people,  to  the  judges :  or  let  the  legislature  come  forward 
with  a  proposition  for  amending  the  doubtful  parts  of  the  Constitution ;  or 
with  a  respectful  and  friendly  memorial,  urging  Congress  to  repeal  the 
laws.  Thus  would  our  union  be  strengthened,  our  friendship  perpetuated. 

The  state  judges,  he  said,  had  on  many  occasions  interposed  when  this 
legislature  had  passed  laws  unconstitutional.  The  remedy  had  cured  the 
disorder,  and  tranquillity  remained  undisturbed.  So  would  do  the  federal 
judges.  They  were  as  respectable,  as  trustworthy  as  were  the  state 
judges ;  in  them  as  much  confidence  ought  to  be  reposed.  For  his  part, 
he  said,  he  felt  as  much  confidence  ;  nor  could  he  admit  the  force  of  those 
distinctions  which  gentlemen  laboured  to  establish,  tending  to  discriminate 
in  favour  of  state  judges  and  state  officers.  They  were  all  citizens  alike, 
bound  to  do  their  duty ;  clothed  with  the  authority  of  the  people,  and 
directed  by  the  will  of  the  people.  Whether  called  state  or  federal  judges, 
sheriff  or  marshal,  was  a  light  and  unimportant  circumstance. 

The  resolutions,  General  Lee  said,  struck  him  as  recommending  resis- 
tance. They  declared  the  laws  null  and  void.  Our  citizens  thus  think- 
ing,, would  disobey  the  laws.  This  disobedience  would  be  patronised  by 
the  state,  and  could  not  be  submitted  to  by  the  United  States.  Insurrec- 
tion would  be  the  consequence.  We  have  had  one  insurrection  lately,  and 
that  without  the  patronage  of  the  legislature.  How  much  more  likely 
might  an  insurrection  happen,  which  seemed  to  be  advised  by  the  Assem- 
bly? The  scene  in  Pennsylvania  turned  out  to  be  a  comedy:  the  same 
attempt  here,  he  feared,  would  issue  in  tragedy.  Let  us,  said  he,  avoid 
these  numerous  ills.  All  the  states  are  interested  in  our  decision,  both  as 
to  their  reputation  and  tranquillity.  He  requested  gentlemen  then  to  be 
temperate,  to  reject  the  proffered  paper,  and  adopt  some  other  course. 

Division  among  ourselves  at  this  time,  he  said,  encouraged  invasion. 
He  could  not  bring  himself  to  believe  that  gentlemen  meant  to  invite  the 
enemy  to  our  country.  He  could  not  attribute  to  gentlemen  such  motives. 
But  what  signified  the  goodness  of  their  intentions,  if  their  measures  pro- 
duced the  effect  ? 

General  Lee  then  concluded  by  entreating  gentlemen  to  pause.  Take 
this  one  rash  step,  said  he,  and  you  will  be  carried  step  by  step  till  you 
land  in  misery,  or  submit  quietly  with  derision  settled  upon  your  heads. 
Should  my  efforts,  Mr.  Chairman,  be  unavailing,  I  shall  lament  my  coun- 


DEBATE  ON  VIRGINIA  RESOLUTIONS.  109 

try's  fate,  and  acquiesce  in  my  country's  will ;  and  amidst  the  surround- 
ing calamities,  derive  some  consolation  from  recollecting  my  humble  exer- 
tions to  stop  the  mad  career. 

Mr.  CURETON  said,  that  there  had  been  silence  in  the  committee  for  some 
time ;  and  if  no  other  gentleman  was  disposed  to  speak,  he  hoped  the 
question  would  then  be  put.  The  debate  had  engaged  their  attention  for 
several  days  past,  and  he  expected  that  every  member  of  the  committee 
had  made  up  his  mind  upon  the  question. 

Mr.  John  Taylor's  resolutions  were  read  by  the  clerk. 

Mr.  PETER  JOHNSTON  then  arose,  and  acknowledged  his  incompetency  to 
throw  any  light  upon  the  subject,  but  hoped  to  be  indulged  with  a  few 
observations  in  answer  to  the  gentleman  from  Westmoreland.  He  had 
contended  that  the  states  were  not  parties  to  the  compact,  but  the  people. 
Mr.  Johnston  denied  the  position,  and  said  that  every  fact  in  the  history 
of  the  government  would  contradict  it.  If  the  confederation  was  formed 
by  states,  the  states  alone  possessed  the  power  of  dissolving  it.  And  when 
it  was  found  incompetent,  the  states,  and  not  the  people,  directed  a  con- 
vention to  frame  the  Constitution.  When  that  was  framed,  their  power 
was  at  an  end.  The  members  of  it,  it  was  true,  were  the  representatives 
of  the  mass  of  the  people  of  America.  But,  when  the  system  was  framed, 
it  was  submitted  to  the  conventions  of  the  people  of  the  several  states.  If 
those  conventions  then  assembled  under  the  auspices  of  the  legislatures  of 
the  different  states,  the  states  were  parties.  Should  the  words,  "  we  the 
people,"  then  change  the  nature  of  the  compact,  contrary  to  the  historical 
facts  of  the  day  1  He  thought  not. 

Mr.  Johnston  then  cited  the  fourth  section  of  the  fourth  article  of  the 
Constitution,  which  declares,  "that  the  United  States  shall  guarantee  to 
every  state  in  this  Union  a  republican  form  of  government,  &c."  Also 
the  fifth  article,  which  declares,  that  "  the  Congress,  whenever  two-thirds 
of  both  houses  shall  deem  it  necessary,  shall  propose  amendments  to  this 
Constitution,  or  on  the  application  of  the  legislatures  of  two-thirds  of  the 
several  states,  shall  call  a  convention  for  proposing  amendments,  which 
in  either  case  shall  be  valid  to  all  intents  and  purposes,  as  part  of  this 
Constitution,  when  ratified  by  the  legislatures  of  three-fourths  of  the  seve- 
ral states,  or  by  conventions  of  three-fourths  thereof,  as  the  one  or  the 
other  mode  of  ratification  may  be  proposed  by  the  Congress,  &c."  From 
these  clauses,  he  conceived,  an  irrefragable  argument  was  deducible  in 
favour  of  his  idea.  It  had  been  said,  however,  that  from  the  expression 
conventions  in  this  article,  the  states  were  not  parties.  Mr.  Johnston  con- 
tended that  they  were,  as  the  other  expressions  in  this  article  were  as 
strongly  in  favour  of  the  states  being  parties,  as  the  word  conventions 
could  be  in  favour  of  the  people  being  parties.  The  truth  was,  that  both 
the  states  and  the  people  were  parties. 

He  then  made  several  observations  in  answer  to  General  Lee's  argu- 
ment upon  the  matter  of  compromise  between  the  states.  This  gentle- 
man, too,  he  said,  had  asserted  that  the  alien-law  extended  to  prevent 
offences,  and  not  to  punish  them.  This  Mr.  Johnston  denied,  and  pro- 
ceeded to  point  out  the  real  case  of  the  alien  under  the  law  of  Congress. 
He  understood  the  law  was  designed  for  alien-friends.  There  was  also  an 


110  DEBATE  ON  VIRGINIA  RESOLUTIONS, 

alien-enemy  law ;  and  if  the  former  related  to  alien-enemies,  it  would 
have  had  reference  to  the  latter.  But  it  was  general ;  it  related  therefore 
to  both.  He  mentioned  the  argument  of  General  Lee  respecting  the  entry 
of  aliens  into  a  country,  but  observed  that  this  point  had  been  before 
spoken  to. 

Mr.  Johnston  also  referred  to  the  remarks  of  Mr.  George  K.  Taylor 
upon  the  rights  of  aliens,  and  contended  that  an  alien  was- entitled  to  jus- 
tice. If  so,  he  was  entitled  to  the  means  of  obtaining  justice,  to  which  a 
fair  trial  was  indispensable,  but  was  deprived  of  it  by  this  law.  It  was  in 
vain  to  say  that  the  President  would  not  abuse  the  power.  If  it  was  not 
warrantable  by  the  Constitution,  it  was  still  objectionable.  It  had  been 
said,  too,  that  citizens  might  live  in  peace  notwithstanding  the  law.  That 
neither,  was  any  argument  if  the  law  was  unconstitutional.  The  gentle- 
man from  Westmoreland  had  placed  a  particular  construction  on  the  word 
persons.  In  doing  that,  the  gentleman  should  have  recollected  the  case 
of  a  certain  description  of  persons  excluded  by  the  laws  of  this  state  from 
entering  the  same.  The  same  gentleman  had  read  extracts  too  from  the 
sedition-law,  to  show  that  there  must  be  intent  and  purpose,  in  order  to 
bring  men  within  the  law.  Mr.  Johnston  asked  how  intent  and  purpose 
were  to  be  made  out  but  by  words  ?  To  illustrate  which  he  mentioned 
Lyon's  case ;  and  then  asked  how  an  intent  could  be  proved,  but  by  de- 
ductions from  words?  Was  that  any  security?  An  evil  intent  might  be 
deduced  from  words,  by  which  none  was  ever  designed.  He  mentioned 
as  an  instance,  the  story  lately  circulated  amongst  them  respecting  Mr. 
Tazewell,  our  senator.  It  would  be,  moreover,  in  the  power  of  the  tools 
of  government  to  place  a  construction  On  words  which  might  destroy  the 
person  speaking  them.  The  gentleman  from  Westmoreland  had  also 
read  extracts  from  the  law  of  the  state  respecting  aliens,  and  insisted  that 
Congress  had  the  same  right  as  the  state  to  pass  such  a  law.  This  Mr. 
Johnston  denied,  and  contended  that  the  states  in  that  respect  had  sove- 
reign power,  and  that  Congress  had  no  such  power,  but  a  defined  and 
limited  power  only.  To  prove  which  he  read  the  first  clause  of  the  ninth 
section  of  the  first  article,  in  the  following  words :  "  The  migration  or  im- 
portation of  such  persons  as  any  of  the  states  now  existing,  shall  think 
proper  to  admit,  shall  not  be  prohibited  prior  to  the  year  1808,  &c. ;"  and 
then  asked,  if  any  law  having  that  effect,  had  been  passed  before  the  adop- 
tion of  the  Constitution  ?  There  had  not ;  therefore  such  clause  was  in- 
serted. Mr.  Jefferson's  letter  too,  had  been  produced,  but  was  that  to  be 
quoted  to  govern  the  committee  on  the  occasion  ?  The  Constitution  should 
be  their  guide.  And  even  Mr.  Jefferson's  letter,  as  it  was  stated,  did 
not  extend  to  the  business  in  question ;  it  related  only  to  private  regula- 
tions. 

Mr.  Johnston  then  proceeded  to  consider  the  consequences  of  the  sedi- 
tion-law ;  and  among  others,  conceived  that  the  public  opinion,  hereto- 
fore found  so  useful,  would  be  repressed,  would  be  punished  by  it.  Was 
that  the  liberty  which  was  guaranteed  by  the  Constitution  ?  No ;  'it  was 
a  shameful  attack  upon  both.  All  the  gentlemen  who  had  spoken  upon 
this  question,  (except  the  gentleman  from  Caroline,)  instead  of  arguing 
the  constitutional  point,  had  addressed  themselves  to  the  passions.  He 


DEBATE  ON  VIRGINIA  RESOLUTIONS.  HI 

then  asked  what  would  be  the  consequence  if  responsibility  was  taken 
from  public  servants?  The  style  of  the  resolutions  too  had  been 
complained  of.  But  whether  the  laws  were  said  by  the  committee  to  be 
null  and  void,  or  not,  was  a  matter,  he  thought,  of  little  consequence. 
For  if  they  were  unconstitutional,  they,  of  course,  were  null  and  void. 
He  justified  the  mode  of  communication  which  the  resolutions  proposed. 
The  people  might  petition  if  they  thought  proper.  But  the  state,  when 
addressing  its  own  servants,  ought  to  act  as  the  resolutions  proposed. 
It  had  a  right  to  instruct  its  senators,  and  the  people  their  representatives. 
However,  Mr.  Johnston  said,  as  the  subject  was  exhausted,  he  would  be 
satisfied  with  the  remarks  he  had  made. 

Mr.  CURETON  arose  next,  and  proceeded  to  deliver  his  opinion  in  re- 
spect to  the  powers  of  the  general  government  and  the  state  governments. 
How  were  their  powers  derived?  From  the  people.  The  convention 
that  framed  the  Constitution  was  called  by  the  states.  The  Constitution 
when  framed  was  submitted  to  the  people,  who,  by  'convention,  ratified  it. 
He  asked  what  would  be  the  consequence  of  an  opinion  that  the  states 
had  the  balance  of  power  alone?  What  was  it?  One-sixteenth  part 
only.  He  considered  that  the  people  had  powers ;  and  contended  that 
they  had  the  only  right  to  act  upon  the  sedition  law.  And  if  Congress 
had  usurped  a  power,  which  should  appear  to  be  an  innovation  on  their 
rights,  they  would  have  the  power  in  March  next  to  make  an  example  of 
those  who  had  trampled  on  those  rights  ,*  and  this  mode  of  proceeding 
was  consistent  with  the  Constitution.  He  then  asked  why  did  the  resolu- 
tions embrace  both  laws  ?  He  also  made  several  observations  respecting 
the  power  of  passing  such  a  law  as  the  alien- law.  He  agreed  with  the 
gentleman  from  Lunenburg,  that  the  power  properly  belonged  to  Congress  ; 
and  asked  how  could  aliens  dangerous  to  the  country  be  sent  out  of  it,  if 
the  power  was  not  vested  in  the  President. 

Mr.  Cureton  then  proceeded  to  answer  the  objections  of  gentlemen  in 
respect  to  the  corruption  of  the  officers  of  the  general  government ;  and 
hoped  that  they  should  be  confined  to  the  constitutionality  of  the  laws  : 
but  he  still  contended  that  the  people  had  the  only  right  to  act  upon  the 
sedition-law.  The  states  never  had  the  power  alone ;  therefore  it  could 
not  be  reserved.  It  belonged  to  Congress,  who  were  under  the  correction 
of  the  people  only.  As  far  as  the  resolutions  related  to  the  alien-law,  he 
had  no  objection,  he  said,  to  do  what  was  proper :  for  instance,  if  it  should 
appear  that  the  law  was  an  infringement  on  the  state  government,  to  re- 
commend it  to  our  senators  in  Congress  to  endeavour  to  have  the  same 
repealed  ;  for  that  was  sanctioned  by  precedent.  But  the  plan  of  the 
resolutions,  Mr.  Cureton  said,  was  a  new  one.  He  looked  upon  it  as  an 
innovation  on  the  rights  of  the  people,  and  stabbing  fundamental  princi- 
ples. He  concluded  by  hoping,  therefore,  that  the  resolutions  would  not 
be  agreed  to. 

Mr.  JOHN  TAYLOR  arose  next,  and  observed  that  though  it  was  late, 
and  the  debates  had  been  protracted  to  great  length,  he  hoped  the  impor- 
tance of  the  subject  would  be  considered  as  a  justification  for  his  replying 
to  the  extraordinary  and  dangerous  arguments  which  had  been  urged  in 
opposition  to  the  resolutions  he  had  introduced. 


112  DEBATE  ON  VIRGINIA  RESOLUTIONS. 

A  member  of  Lunenberg  had  even  asserted  them  to  be  an  act  of  per- 
fidiousness  to  the  people ;  because,  by  undertaking  to  declare  one  law  of 
Congress  unconstitutional,  the  legislature  would  assume  a  power  of  de- 
claring all  their  laws  unconstitutional.  Let  the  proposition  then  be  re- 
versed, to  discover  if  there  be  perfidiousness  in  the  case,  the  side  to  which 
it  attached.  Would  it  be  said,  that  the  Legislature  could  not  declare  this 
law  of  Congress  unconstitutional,  because  it  could  declare  no  law  of  Con- 
gress unconstitutional?  Admitting  such  a  position,  did  not  these  conse- 
quences evidently  follow,  that  the  check  meditated  against  Congress  in  the 
existence  of  the  state  governments,  was  demolished  ;  that  Congress 
might  at  its  pleasure  violate  the  constitutional  rights  of  these  governments; 
that  they  must  instantly  become  dependent,  and  be  finally  annihilated. 
Could  it  be  perfidious  to  preserve  the  freedom  of  religion,  of  speech,  of  the 
press,  and  even  the  right  of  petitioning  for  a  redress  of  grievances  1  Gen- 
tlemen, in  defining  the  laws  of  Congress,  had  taken  their  stand  upon  this 
broad  principle,  namely,  "  That  every  government  inherently  possesses 
the  powers  necessary  for  its  own  preservation."  Apply  this  principle  to 
the  state  governments:  for,  if  it  be  a  sound  one,  they  are  equally  entitled 
to  the  benefit  of  it,  with  the  general  government.  Under  this  principle 
then,  to  which  his  adversary  had  resorted,  and  which  he  therefore  could 
not  deny,  it  followed  that  the  state  governments  have  a  right  to  withstand 
such  unconstitutional  laws  of  Congress,  as  may  tend  to  their  destruction, 
because  such  "  a  power  is  necessary  for  their  preservation."  To  illustrate 
this,  suppose  Congress  should  be  of  opinion,  that  an  arrangement  of  men 
into  different  ranks  would  tend  to  the  order  of  society,  and  should,  as  pre- 
paratory to  this  end,  intermeddle  with  inheritances,  and  re-establish  pri- 
mogeniture. It  could  be  only  urged  against  such  a  law,  that  it  was  un- 
constitutional ;  but  if  the  state  could  not  declare  any  law  of  Congress 
unconstitutional  and  void,  even  such  an  one  as  this  must  be  submitted  to, 
and  of  course  all  powers  whatsoever  would  gradually  be  absorbed  by,  and 
consolidated  in,  the  general  government. 

He  observed,  that  the  right  of  the  state  to  contest  the  constitutionality 
of  a  law  of  Congress  could,  however,  be  defended  upon  better  ground,  than 
by  the  reaction  of  the  doctrines  of  gentlemen  on  themselves.  That  a 
principle  literally  constitutional,  theoretically  sound,  and  practically  useful, 
could  be  advanced,  on  which  to  rest  it.  It  was  this  :  the  people  and  the 
states  could  only  have  intended  to  invest  Congress  with  a  power  to  legis- 
late constitutionally,  and  the  Constitution  expressly  retains  to  the  people 
and  the  states,  every  power  not  surrendered.  If  therefore  Congress 
should,  as  was  certainly  possible,  legislate  unconstitutionally,  it  was  evi- 
dent that  in  theory  they  have  done  wrong,  and  it  only  remained  to  con- 
sider whether  the  Constitution  is  so  defective  as  to  have  established  limita- 
tions and  reservations,  without  the  means  of  enforcing  them,  in  a  mode,  by 
which  they  could  be  made  practically  useful.  Suppose  a  clashing  of 
opinion  should  exist  between  Congress  and  the  states,  respecting  the  true 
limits  of  their  constitutional  territories,  it  was  easy  to  see,  that  if  the  right 
of  decision  had  been  vested  in  either  party,  that  party,  deciding  in  the 
spirit  and  interest  of  party,  would  inevitably  have  swallowed  up  the  other. 
The  Constitution  must  not  only  have  foreseen  the  possibility  of  such  a 


DEBATE  ON  VIRGINIA  RESOLUTIONS.  113 

clashing,  but  also  the  consequence  of  a  preference  on  either  side  as  to  its 
construction.  And  out  of  this  foresight  must  have  arisen  the  fifth  article, 
by  which  .two-thirds  of  Congress  may  call  upon  the  states  for  an  explana- 
tion of  any  such  controversy  as  the  present,  by  way  of  amendment  to  the 
Constitution ;  and  thus  correct  an  erroneous  construction  of  its  own  acts, 
by  a  minority  of  the  states ;  whilst  two-thirds  of  the  states  are  also  allowed 
to  compel  Congress  to  call  a  Convention,  in  case  so  many  should  think 
an  amendment  necessary  for  the  purpose  of  checking  the  unconstitutional 
acts  of  that  body.  Thus,  so  far  as  Congress  may  have  the  power,  it 
might  exert  it  to  check  the  usurpations  of  a  state,  and  so  far  as  the  states 
may  possess  it,  an  union  of  two-thirds  in  one  opinion  might  effectually 
check  the  usurpations  of  Congress,  And,  under  this  article  of  the  Con- 
stitution,  the  incontrovertible  principle  before  stated,  might  become  practi- 
cally useful ;  otherwise  no  remedy  did  exist  for  the  only  case  which  could 
possibly  destroy  the  Constitution,  namely,  an  encroachment  by  Congress, 
or  the  states,  upon  the  rights  of  the  other.  The  case  was  even  strongest 
in  favour  of  a  check  in  the  hands  of  the  states  upon  Congress :  for  although 
Congress  could  never  alter  or  amend  the  Constitution,  without  the  concur- 
rence of  three-fourths  of  the  states ;  yet  such  a  concurrence  would  be  able 
so  to  alter  or  amend  it,  as  to  check  the  encroachments  of  Congress, 
although  the  whole  of  that  body  should  disagree  thereto.  The  reason  for 
this  will  exhibit  the  unconstitutionally  of  the  argument,  which  supposes, 
that  the  states  hold  their  constitutional  rights  by  the  courtesy  of  Congress. 
It  was  this :  Congress  is  the  creature  of  the  states  and  of  the  people ;  but 
neither  the  states  nor  the  people  are  the  creatures  of  Congress.  It  would 
be  evidently  absurd,  that  the  creature  should  exclusively  construe  the  in- 
strument of  its  own  existence ;  and  therefore  this  construction  was  reserved 
indiscriminately  to  one  or  the  other  of  those  powers,  of  which  Congress 
was  the  joint  work;  namely,  to  the  people,  whenever  a  convention  was 
resorted  to,  or  to  the  states,  whenever  the  operation  should  be  carried  on 
by  three-fourths. 

Mr.  Taylor  then  proceeded  to  apply  these  observations  to  the  threats  of 
war,  and  the  apprehension  of  civil  .commotion,  towards  which  the  resolu- 
tions were  said  to  have  a  tendency.  Are  the  republicans,  said  he, 
possessed  of  fleets  and  armies?  If  not,  to  what  could  they  appeal  for  de- 
fence and  support?  To  nothing,  except  public  opinion.  If  that  should 
be  against  them,  they  must  yield ;  if  for  them,  did  gentlemen  mean  to  say, 
that  public  will  should  be  assailed  by  force?  If  so,  should  a  minority,  by 
the  help  of  the  powers  of  government,  resort  to  force  for  its  defence  against 
public  opinion ;  and  against  a  state  which  was  pursuing  the  only  possible 
and  ordinary  mode  of  ascertaining  the  opinion  of  two-thirds  of  the  states, 
by  declaring  its  own,  and  asking  theirs  ?  How  could  the  fifth  article  of 
the  Constitution  be  brought  into  practical  use,  even  upon  the  most  flagrant 
usurpations  ?  War  or  insurrection,  therefore,  could  not  happen,  except 
Congress  should  attempt  to  control  public  opinion  by  force ;  and  this  it 
could  not  be  supposed  they  would  ever  do,  not  only  because  the  will  of 
the  people  is  the  sovereign  in  all  republics ;  but  also,  because  both  that 
will  and  the  will  of  the  states,  were  made  the  constitutional  referee  in  the 
case  under  consideration.  Hence  a  movement  towards  this  referee  could 

8 


114  DEBATE  ON  VIRGINIA  RESOLUTIONS. 

never  be  admitted  as  leading  to  war  or  commotion,  except  in  those  coun- 
tries where  an  armed  and  corrupt  minority  had  usurped  the  government, 
and  would  of  course  behold  with  abhorrence  an  arbitrament  of  a  majority. 
Such,  however,  he  hoped  would  be  the  respect  to  public  opinion,  that  he 
doubtecl  not  but  that  the  two  reprobated  laws  \yould  be  sacrificed,  to  quiet 
the  apprehensions  even  of  a  single  state,  without  the  necessity  of  a  conven- 
tion, or  a  mandate  from  three-fourths  of  the  states,  whenever  it  shall  be 
admitted,  that  the  quiet  and  happiness  of  the  people  is  the  true  end  and 
design  of  government. 

With  respect,  he  said,  to  the  remedy  proposed  in  the  talents  and  integrity 
of  the  continental  judges,  without  regarding  the  prejudices  which  might 
probably  exist  in  favour  of  the  government,  from  which  an  appointment 
should  flow,  it  might  be  remarked,  that  the  judges  by  the  Constitution  are 
not  made  its  exclusive  guardians.  That  if  continental  judges  were  the 
proper  referees  as  to  the  constitutionality  of  continental  laws,  state  judges 
were  the  proper  referees  as  to  the  constitutionality  of  state  laws ;  that 
neither  possessed  a  power  ovdr  the  other,  whence  a  clashing  of  adjudica- 
tion might  ensue ;  and  that  if  either  had  been  superior,  the  same  conse- 
quences would  result  as  would  flow  from  a  superiority  of  Congress,  or  of 
the  states  over  the  other,  with  this  additional  aggravation,  that  the  people 
could  not  by  their  elections  influence  a  constitutional  question,  to  be  decided 
by  the  judges,  as  they  could  to  a  certain  extent,  when  it  was  to  be  decided 
by  a  general  or  state  legislature:  an  influence,  however,  insufficient;  be- 
cause it  would  require  six  years  to  change  the  Senate  of  the  United 
States,  and  four  that  of  Virginia,  during  which  an  unconstitutional  law 
would  have  done  its  mischief,  which  was  yet  greatly  preferable  to  no 
influence  at  all. 

He  observed,  that  the  resolutions  had  been  objected  to  as  being  couched 
in  language  too  strong  and  offensive,  whilst  it  had  also  been  said  on  the 
same  side,  that  if  the  laws  were  unconstitutional,  the  people  ought  to  fly  to 
arms,  and  resist  them.  To  this  he  replied  that  he  was  not  surprised  to 
hear  the  enemies  of  the  resolutions  recommending  measures  which  were 
either  feeble  or  rash.  Timidity,  it  was  known,  only  served  to  invite  a 
repetition  of  injury,  whilst  an  unconstitutional  resort  to  arms  would  not 
only  justly  exasperate  all  good  men,  but  invite  those  who  differed  from 
the  friends  to  the  resolutions  to  the  same  appeal,  and  produce  a  civil  war. 
Hence  those  who  wished  to  preserve  the  peace,  as  well  as  the  Constitution, 
had  rejected  both  alternatives,  and  chosen  the  middle  way.  They  had 
uttered  what  they  conceived  to  be  truth,  in  firm  yet  decent  language ;  and 
they  had  pursued  a  system  which  was  only  an  appeal  to  public  opinion, 
because  that  appeal  was  warranted  by  the  Constitution,  and  by  principle ; 
and  because  it  gave  an  opportunity  to  the  general  government  to  discover 
whether  they  would  be  faithful  to  the  same  principle,  and  thereby  establish 
a  precedent,  which  would  both  now  and  hereafter  have  a  strong  tendency 
against  civil  war.  That  this  firmness, 'which  was  both  exhibited  and  felt, 
was  really  necessary  as  an  act  of  friendship  to  the  general  government,  if  it 
was  true,  as  some  thought,  and  as  the  commotion  in  the  public  mind 
plainly  indicated,  that  a  farther  progress  in  their  system  was  full  of  danger 
to  itself,  and  misery  to  the  people.  If,  said  he,  we  beheld  our  friend 


DEBATE  ON  VIRGINIA  RESOLUTIONS;  115 

already  advanced  to  the  brink  of  a  precipice  without  having  discovered  it, 
ought  we  in  friendship  slightly  to  admonish  him  that  the  very  next  step 
might  precipitate  him  into  an  abyss  below,  or  strenuously  to  warn  him  of 
his  danger?  Again  :  If  a  country  was  to  be  defended,  into  which  the  foe 
could  only  enter  at  a  single  pass,  which  was  fortified  and  garrisoned, 
ought  the  resistance  of  this  garrison  to  be  feeble  and  cowardly,  and  ought 
they  traitorously  to  surrender  this  key  into  their  country,  from  a  confidence 
in  the  enemy  1  Liberty  was  that  country — our  Constitution  the  fortress 
— and  ourselves  the  garrison.  Shall  we,  he  said,  desert  our  post  without 
even  a  parley  with  the  assailants?  If  we  did,  the  inevitable  consequence 
must  be  a  consolidation  of  these  states  into  one  great  sovereignty,  which 
will,  from  its  vast  extent,  as  inevitably  settle  with  rapidity  into  a  monarchy, 
and  like  all  other  great  empires  it  must  resort  to  those  oppressions  to  sup- 
port itself,  which  make  the  cup  of  life  bitter  to  man.  That  such  a  degree 
of  timidity  would  be  as  dishonourable  as  the  violent  measures  which  gen- 
tlemen on  the  other  side  recommended  in  easels  of  constitutional  infractions, 
would  be  immoral  and  unconstitutional. 

That  firmness  as  well  as  moderation  could  only  produce  a  desirable 
coincidence  between  the  states,  an  example  of  which  having  been  already 
set  by  Kentucky,  it  behooved  us  so  to  act  as  to  avoid  a  difference  of  opinion 
as  to  the  mode,  when  we  united  in  the  end  ;  because  divisions  respecting 
either  would  undoubtedly  destroy  every  hope  of  a  successful  issue.  In 
opposition  to  the  propriety  of  soliciting  this  coincidence,  the  Constitution, 
prohibiting  the  states  from  entering  into  a  confederation  among  themselves, 
had  been  quoted.  In  reply  to  which  he  would  ask,  if  an  application  from 
one  state  to  another  to  learn  its  sentiments  upon  a  point  relative  to  the 
Constitution,  was  to  be  considered  as  unconstitutional,  as  amounting  to  a 
confederation?  In  what  way  could  two-thirds  of  the  states  consult  or 
unite,  so  as  to  exercise  their  right  of  calling  a  convention  under  the  fifth 
article,  or  in  what  way  could  three-fourths  ever  amend  the  Constitution  ? 
This  observation  evinced  the  incorrectness  of  such  a  construction,  as  had 
also  the  practice  of  the  states,  in  submitting  each  other's  resolutions  to 
mutual  consideration,  in  a  variety  of  instances. 

Mr.  Taylor  then  said  that  the  constitutionality  of  the  laws  had  been 
defended  by  the  common  law.  It  had  been  said  that  the  common  law 
attaches  the  rights  arising  from  the  law  of  nations  to  a  sovereignty 
wherever  it  resides :  that  therefore  a  power  over  aliens  devolved  under  the 
common  law  upon  Congress,  and  that  sedition  being  also  a  common  law 
offence,  they  had  a  right  to  punish  it.  If  the  common  law  bestowed 
powers  upon  Congress,  it  was  unnecessary  to  controvert  these  laws,  be- 
cause there  was  hardly  any  species  of  oppression  which  it  would  not 
justify.  Heresy  and  witchcraft  were  common  law  offences ;  the  former 
was  a  complete  engine  for  tyranny.  But  the  Constitution  of  the  Union 
did  nowhere  adopt  the  common  law,  or  refer  to  it  as  a  rule  of  construction. 
That  as  the  state  constitutions  or  laws  had  done  so  under  different 
forms,  it  evinced  that  the  states  must  have  considered  an  adoption  necessary 
to  give  it  force,  and  thinking  so,  it  was  impossible  that  the  state  conven- 
tions which  assented  to  the  Constitution,  could  ever  have  supposed  that 
they  were  establishing  a  government  which  could  at  pleasure  dip  their 
hands  into  the  inexhaustible  treasuries  of  the  common  law  and  law  of 


116  DEBATE  ON  VIRGINIA  RESOLUTIONS. 

nations,  and  thence  extract  as  much  power  as  they  pleased.  On  the  con- 
trary, the  Constitution  of  the  Union  does  in  its  face  plainly  erect  a^go- 
vernment  of  powers  expressed  and  limited,  and 'not  left  to  be  new-modelled 
at  random,  or  by  ambition,  by  a  reference  to  obsolete  or  little  known  codes 
of  law,  which  had  never  been  taken  into  contemplation  during  its  discus- 
sion in  any  state  convention. 

Having  now  gotten  rid  of  objections  rather  collateral,  Mr.  Taylor  said 
that  he  would  come  to  those  which  more  immediately  referred  to  the 
objectionable  laws.  It  had  been  said  that  aliens  had  no  rights :  that  if 
they  had,  such  rights  were  only  held  by  the  law  of  nations,  which  allows 
them  to  be  removed  whenever  their  residence  is  thought  dangerous  by  the 
sovereignty ;  and  assuming  it  as  granted  that  the  sovereignty  of  America 
is  in  Congress,  it  was  therefore  concluded  that  the  law  was  constitutional. 

In  reply  to  this  argument,  he  observed,  that  Congress  only  possessed  a 
special  and  limited  sovereignty,  to  be  exercised  in  a  special  and  limited 
manner,  so  as  not  to  conflict  with  that  portion  of  sovereignty  retained  to 
the  several  states,  and  so  as  not  to  violate  those  constitutional  principles 
prescribed  for  the  preservation  of  liberty.  That  aliens,  under  the  law  of 
nations,  were  entitled  and  subjected  to  the  sanctions  of  municipal  law ;  and 
however  their  rights  as  foreigners  may  be  unimportant  to  us  as  natives, 
yet  it  was  of  vast  importance  that  the  fundamental  principles  of  our  munici- 
pal law  should  not  be  destroyed,  because  an  alien  only  was  the  presenj 
victim,  since  it  established  precedents,  and  produced  consequences,  which 
would  wound  citizens  through  the  sides  of  aliens.  To  apply  this  general 
remark,  he  said,  the  Constitution  was  a  sacred  portion  of  municipal  law. 
It  had  empowered  Congress  "  to  define  and  punish  offences  against  the 
law  of  nations,"  and  it  had  declared,  "  that  the  judicial  power  shall  extend 
to  all  cases  in  law  and  equity  arising  under  this  Constitution,  or  the  laws 
of  the  United  States ;  and  that  the  trial  of  all  crimes  shall  be  by  jury." 
The  law  of  nations  was  therefore  in  contemplation  whilst  defining  the 
judiciary  power.  If  an  alien  has  done  wrong,  must  it  not  be  a  case  in 
law  or  equity ,  or  a  crime  1  At  any  rate,  must  it  not  be  a  case  arising 
under  the  Constitution,  or  the  laws  of  the  Union?  If  so,  his  punishment, 
supposing  the  act  criminal,  is  to  be  inflicted  by  a  jury:  if  not  criminal,  it 
is  yet  referred  to  the  judiciary,  by  the  comprehensive  terms  "  all  cases." 
Might  not  precedents  then,  violating  these  essential  principles  of  our 
municipal  law,  be  dangerous  to  citizens,  when  it  was  recollected  that  no 
difference  is  contemplated  by  the  law  of  nations,  or  that  municipal  law, 
between  aliens  and  citizens  touching  these  rights,  Curing  the  residence  of 
the  former.  Again:  were  not  the  checks  contemplated  by  the  Constitution 
weakened  by  making  a  President  in  fact  a  king  of  the  aliens?  Our  towns 
will  abound  with  men  whose  every  interest  depends  upon  executive  plea- 
sure. Might  they  not  be  used  to  influence  elections  ?  And  what  would 
prohibit  their  being  forced  into  the  volunteer  corps,  then  to  be  armed  and 
officered  by  the  executive?  Here  ihen,  except  for  the  virtues  of  a  terfl- 
porary  chief  magistrate,  was  a  mode  struck  out,  by  which  a  large  force 
might  be  embodied  and  armed,  possessing  no  rights,  and  completely 
dependent  on  the  will  of  one  man.  Was  this  to  adjust  the  balances?  Or 


DEBATE  ON  VIRGINIA  RESOLUTIONS.  117 

did  it  comport  with  the  principles  of  republicanism  ?     If  not,  in  this  mode 
also  might  citizens  be  wounded  through  the  sides  of  aliens. 

A  gentleman  from  Prince  George,  he  said,  had  urged,  that  except  for 
this  law,  the  state  of  Virginia  might  admit  a  French  army  with  Bonaparte 
at  their  head.  Of  this,  he  said,  there  would  certainly  be  as  little  danger, 
as  that  under  it  a  President  should  admit  an  English  army.  Because, 
although  it  was  obvious  no  nation  would  call  in  a  foreign  force  to  destroy 
itself,  yet  history  was  not  deficient  in  cases  wherein  individuals  have 
resorted  to  a  foreign  force  to  enslave  the  nation.  That  he  meant  not  to 
insinuate  anything  to  the  injury  of  the  present  President;  but  by  retorting 
the  argument,  to  show  its  weakness,  by  exhibiting  the  difference  between 
suffering  the  residence  of  foreigners  to  depend  upon  the  national  legislatures, 
and  surrendering  it  as  a  great  prerogative,  to  one  man. 

It  had  been  argued  too,  that  the  power  given  to  Congress  to  protect  each 
state  against  invasion,  comprised  a  power  of  expelling  dangerous  incen- 
diary aliens;  for  that  Congress  ought  to  be  enabled  to  nip  dangerous 
designs  in  the  bud. 

If  power  could  be  gotten  by  inferences  as  loose  as  these,  all  attempts  to 
limit  it  might  be  relinquished.  Dangerous  designs  ought  to  be  nipt  in  the 
bud.  Was  it  the  danger  to  which  the  power  attached,  and  not  the  alien- 
age 1  If  so,  dangerous  incendiary  citizens  might  also  be  nipt  in  the  bud 
without  trial,  and  exported  at  executive  will.  The  protection  of  a  state 
against  invasion,  is  imposed  upon  Congress  as  a  duty,  secondary  only  to 
the  guarantee  of  a  republican  form  of  government,  and  not  bestowed  upon 
them  as  an  enlargement  of  power ;  and  the  reason  of  it  is,  that  the  states 
are  prohibited  from  keeping  troops  or  ships  of  war  in  time  of  peace,  which 
prohibition  does  not  extend  to  the  Union.  Greatly  as  this  argument  had 
been  relied  on,  the  propriety  of  this  construction  was  evinced  by  two  obser- 
vations ;  one,  that  the  states  might  as  far  as. they  could  protect  themselves 
against  invasion,  and  even  raise  troops  in  time  of  war,  proving  that  this 
was  a  duty  imposed  upon  Congress,  and  not  an  executive  power.  The 
other,  that  it  is  also  made  the  duty  of  Congress  to  protect  the  states  against 
domestic  violence,  but  only  on  application  of  the  state  legislature  or  execu- 
tive. The  jealousy  evidently  exhibited  here  against  the  interposition  of 
Congress,  even  in  cases  of  actual  domestic  violence,  by  no  means  warrants 
the  supposition,  that  they  might  interpose  where  apprehensions  of  danger 
only  existed.  Further,  if  Congress  obtained  the  power  constructively 
from  that  of  repelling  invasions,  there  was  nothing  to  limit  its  exercise  to 
aliens.  Again,  and  again,  the  committee  were  told  of  the  common  law 
and  the  sovereignty  of  Congress.  An  attempt  to  excite  an  insurrection 
had  been  called  an  offence  at  common  law ;  and  a  power  to  regulate  all 
cases  arising  under  the  law  of  nations,  it  was  said,  follows  sovereignty. 
Thus  every  power  was  bestowed  arising  from  these  copious  sources.  He 
asked,  by  what  part  of  the  Constitution  Congress  were  empowered  to 
punish  all  common  law  offences,  and  whether  that  barbarous,  feudal,  gothic 
and  bloody  criminal  code  was  to  be  let  loose  upon  us  by  inference  and 
implication  1  Domestic  violence,  said  he,  is  insurrection.  Why  was  Con- 
gress specially  directed  how  to  act  in  this  common  law  offence,  if  they  had 


118  DEBATE  ON  VIRGINIA  RESOLUTIONS. 

an  unlimited  power  to  punish  all  common  law  offences?  As  to  these 
rights  of  sovereignty,  it  was  fair  reasoning  to  urge,  that  a  particular 
donation  of  a  part  excluded  the  idea  of  a  donation  of  the  whole  by 
way  of  inference.  If  this  splendid  thing  called  sovereignty  had  invested 
Congress  with  all  the  powers  arising  from  the  law  of  nations,  why 
was  it  necessary  particularly  to  invest  Congress  with  the  power  of 
punishing  offences  against  the  law  of  nations'?  And  if  Congress, 
under  this  sovereignty,  derived  to  themselves  an  unlimited  power  over 
aliens,  how  could  it  Ijave  been  necessary  to  bestow  upon  Congress  the 
special  power  of  naturalizing  these  very  aliens?  This  doctrine  of  the 
rights  of  sovereignty  was  as  dangerous  as  false.  Dangerous,  because  its 
extent  could  be  never  foreseen :  false,  as  violating  the  idea  of  limiting  a 
government  by  constitutional  rules.  From  this  unlimited  source,  the 
British  Parliament  derives  its  claim  of  unlimited  power.  King,  lords  and 
commons,  because  sovereign,  may  do  everything.  If  it  was  admitted  here, 
being  in  fact  a  common  law  doctrine,  it  not  only  would  absorb  the  com- 
mon law  powers,  and  those  arising  from  the  laws  of  nations,  but  also  the 
royal  prerogatives,  and  whatever  else  it  bestows  upon  the  British  Parlia- 
ment. Such  a  sovereignty  would  speedily  swallow  up  the  state  govern- 
ments, consolidate  the  Union,  and  terminate  in  monarchy. 

Mr.  Taylor  said,  that  the  laws  objected  to  had  been  largely  defended 
within  and  without  doors,  upon  the  ground  of  laws  with  similar  provisions 
having  been  passed  in  this  state. 

Without  stopping,  he  said,  to  point  out  the  strong  distinguishing  features 
between  the  state  laws  and  those  of  Congress,  it  would  suffice  to  show  the 
inefficacy  of  the  argument  upon  other  grounds.  The  powers  surrendered 
to  Congress  and  reserved  to  the  states,  are  by  the  Constitution  evidently 
designed  to  be  defined,  and  whether  successfully  or  not,  it  was  yet  impossible 
to  deny  the  intention  of  that  instrument  to  concede  certain  powers  to  the 
one,  and  to  reserve  certain  other  powers  to  the  other.  If  then  it  was  a 
sound  argument  to  assert,  that  Congress  may  legislate  upon  a  subject 
because  a  slate  has  already  done  so ;  that  is,  that  the  exercise  of  the  reser- 
vation by  a  state  shall  enlarge  the  concession  in  favour  of  Congress,  it 
followed  that  the  reservation  so  soon  as  it  was  used  was  lost,  and  that  even 
the  limitations  upon  congressional  power  ought  to  be  understood  as  only 
designed  to  extend  it.  Further,  perhaps  no  state  constitution  in  America 
exhibits  that  clear  and  explicit  restraint  upon  a  legislative  interposition 
respecting  the  freedom  of  religion,  the  press,  and  petitioning,  which  was 
to  be  found  among  the  amendments  of  the  general  Constitution.  Was  it 
defensible  then  to  assert  that  Congress,  though  opposed  by  this  positive 
constitutional  barrier,  were  yet  empowered  to  legislate  co-extensively  upon 
these  subjects  with  a  particular  state  having  no  such  obstruction  to  sur- 
mount. 

He  said  that  this  extravagant  and  unjustifiable  mode  of  construing  the 
Constitution  had  even  been  carried  so  far  as  to  quote  Blackstone,  and  a 
private  letter  of  Mr.  Jefferson  ;  so  that  if  this  instrument  was  to  be  ex- 
pounded, not  by  itself,  but  by  the  law  of  nations,  the  common  law  of 
England,  the  laws  of  the  several  states,  the  opinions  of  English  judges, 
and  the  private  letters  of  individuals,  it  had  only  launched  us  upon  the 
ocean  of  uncertainty,  instead  of  having  conducted  us  into  a  safe  and  quiet 


DEBATE  ON  VIRGINIA  RESOLUTIONS.  119 

harbour.  That  Blackstone's  definition  of  the  liberty  of  the  press,  con- 
sidered as  accurate  by  the  gentleman  on  the  other  side,  amounted  to  this : 
"  the  right  of  publishing  anything  not  prohibited  by  law  without  the  neces- 
sity of  obtaining  a  previous  license"  He  wholly  quibbles  away  the  liberty 
of  the  press,  in  the  whim  of  considering  the  necessity  of  a  lioense  as  the 
only  mode  of  destroying  it,  whilst  he  also  admits  that  government  may 
prohibit  it  from  printing  whatever  it  pleases.  Was  it  not  obvious  that  the 
end  meditated  by  the  liberty  of  the  press,  can  as  effectually  be  defeated  in 
one  mode  as  the  other,  and  that  if  a  government  can  by  law  garble,  sup- 
press and  advance  political  opinion,  public  information,  this  great  end, 
upon  which  public  liberty  depends,  will  be  completely  destroyed.  Accord- 
ing to  this  construction,  the  Constitution  of  America  has  only  declared 
that  Congress  shall  not  intercept  writings  by  a  previous  examination,  and 
allowance  or  rejection  ;  but  that  they  may  make  whatever  writings  they 
please  illegal  and  penal  in  any  extent.  Read,  said  he,  the  Constitution, 
and  consider  if  this  was  all  it  meant  to  secure. 

Mr.  Jefferson's  letter,  he  said,  was  written  before  the  amendment  to  the 
Constitution  which  it  recommended  :  but  upon  which  it  could  not  of  course 
be  a  comment ;  and  therefore  this  letter,  if  it  had  lent  any  aid  to  the  gen- 
tlemen on  the  other  side,  would  be  more  than  balanced  by  that  sublime 
and  just  construction  of  the  Constitution  itself,  as  to  the  liberty  of  the 
press,  to  be  found  in  the  negotiations  of  the  late  envoys  to  France.  But 
this  letter,  as  well  as  plain  legal  principles,  had  been  egregiously  misun- 
derstood, and  both  upon  examination,  would  be  found  to  support  the  argu- 
ment against  the  laws.  The  letter,  whilst  recommending  those  securities, 
for  which  the  amendment  to  the  Constitution  was  afterwards  designed, 
urges  as  an  argument,  that  all  were  legally  answerable  for  false  facts  pub- 
lished injuring  others.  This  is  the  letter,  and  this  the  legal  principle  upon 
which  a  common  action  of  slander  was  grounded :  and  laws  reaching  this 
evil,  existed  before  the  sedition-act,  in  every  part  of  the  Union.  By  a 
small  but  important  deviation  both  from  the  letter  and  the  law,  a  great 
and  dangerous  delusion  was  resorted  to  by  the  gentlemen  on  the  other 
side.  Falsehood,  said  they,  is  punishable  by  law,  and  Mr.  Jefferson  ad- 
mits that  it  ought  to  be  so  ;  and  the  sedition-law  punishing  falsehood  only, 
both  the  laws  and  Mr.  Jefferson  have  united  in  its  approbation  previous  to 
its  existence.  The  great  error  in  this  doctrine  arose  from  dropping  the 
word  "  fact,"  and  taking  that  of  "  falsehood,"  which  includes  «« opinion," 
as  well  as  fact.  Fact  was  capable  of  proof,  opinion  was  not.  To  say 
that  such  laws  as  the  alien  and  sedition  existed,  would  be  to  assert  a  fact, 
and  if  he  (Mr.  Taylor)  was  prosecuted  for  it,  it  might  be  proved.  But  to 
assert  that  these  laws  were  unconstitutional  and  oppressive,  and  produc- 
tive of  monarchy,  would  be  an  opinion,  constituting  a  degree  of  criminality 
under  the  sedition-law,  subjecting  a  man  to  punishment,  and  yet  it  was 
not  a  fact  capable  of  being  proved.  Hence,  therefore,  the  laws  of  the 
land,  and  Mr.  Jefferson's  letter,  unite  in  confining  punishment  to  the  pub- 
lication of  false  facts,  and  hence  opinions  were  only  made  punishable  in 
tyrannical  governments;  because  there  was  no  standard  to  determine  the 
truth  or  falsehood  of  opinion. 

But  he  said,  it  had  been  violently  objected  that,  supposing  these  laws  are 


120  DEBATE  ON  VIRGINIA  RESOLUTIONS. 

unconstitutional,  the  state  legislature  could  have  nothing  to  do  with  the 
subject ;  because  the  people  alone  are  parties  to  the  compact,  called  the 
Constitution  of  the  United  States^ 

To  this  objection  he  answered,  that  although  the  framers  of  the  Consti- 
tution chose  to  use  the  style,  "we,  the  people,"  yet  it  was  notorious,  that 
in  every  step,  from  its  commencement  to  its  termination,  the  sense  of  the 
people  respecting  it,  appeared  through  the  medium  of  some  representative 
State  Assembly,  either  legislative  or  constituent.  That  the  Constitution 
itself,  in  many  parts,  recognises  the  states  as  parties  to  the  contract,  par- 
ticularly in  the  great  articles  of  its  amendment,  and  that  of  admitting  new 
states  into  the  Union  without  a  reference  to  the  people ;  and  that  even  the 
government  of  the  Union  was  kept  in  motion  as  to  one  House  of  the 
legislature,  by  the  act  of  the  state  sovereignties.  That  added  to  these  in- 
contestable arguments  to  show  that  the  states  are  parties  to  the  compact, 
the  reservation  of  powers  not  given,  was  to  the  states  as  well  as  to  the 
people,  recognising  the  states  as  a  contracting  party,  to  whom  rights  were 
expressly  reserved.  From  all  which  it  followed,  though  it  be  not  denied 
that  the  people  are  to  be  considered  as  parties  to  the  contract,  that  the 
states  are  parties  also,  and  as  parties,  were  justifiable  in  preserving  their 
rights  under  the  compact  against  violation  ;  otherwise  their  existence  was 
at  an  end ;  for,  if  their  legislative  proceedings  could  be  regulated  by  con- 
gressional sedition-laws,  their  independency,  and  of  course  their  existence, 
were  gone.  And  although  it  had  been  within  and  without  doors  often  as- 
serted, that  the  sedition-act  does  not  extend  to  words  spoken,  yet  if  any 
gentleman  would  read  the  first  section,  and  consider  the  terms  "  counsel 
or  advise,"  he  would  find  that  words  are  clearly  within  its  letter,  and  that 
this  part  of  the  law  seems  particularly  adapted  for  a  deliberative  assembly. 
He  said  he  could  not  but  observe,  that  this  doctrine,  that  the  people 
are  to  be  considered  as  the  only  parties  to  the  compact,  was  incomplete. 
The  idea  of  a  person's  contracting  with  himself  was  absurd.  Where  was 
the  other  party?  He  feared,  though  it  was  not  avowed,  that  the  gentle- 
men were  glancing  towards  the  old  doctrine  of  a  compact  between  govern- 
ment and  people;  a  doctrine  which  effectually  destroyed  the  supremacy 
of  the  people  and  the  independence  of  government,  no  less  than  the  mon- 
strous doctrine  of  allegiance  and  protection,  which  falsely  supposes,  that 
the  people  are  indebted  to  the  government  for  safety,  whereas  it  is  they 
who  erect,  support,  and  protect  the  government.  That  it  was  also  curious 
to  observe,  that  gentlemen  allow  the  state  governments  to  have  been  proper 
organs  of  the  will  of  the  people,  whilst  binding  them  by  the  measures 
leading  to  the  Constitution,  and  that  they  still  allow  these  organs  to  be 
capable  of  expressing  their  will  in  the  election  of  senators,  and  doing  any 
other  acts  for  the  execution  of  the  Constitution,  whilst  they  deny  that  they 
are  any  organs  of  public  will,  for  the  sake  of  opposing  an  infringement  of 
the  same  Constitution.  Thus,  in  framing  it,  and  in  executing  it,  in  a  great 
variety  of  ways,  the  will  of  the  people  was  allowed  to  express  itself  through 
this  medium ;  but  in  saving  it  from  violation,  it  shall  be  closed  up  against 
them ;  so  that  there  shall  be  as  few  obstacles  as  possible  against  this  vio- 
lation. The  people  may  petition  Congress,  said  gentlemen,  against  the 
violation,  and  this  was  the  only  proper  remedy.  Let  us,  said  Mr.  Taylor, 


DEBATE  ON  VIRGINIA  RESOLUTIONS.  121 

f 

apply  this  remedy  to  another  case.  Suppose  a  state  should,  by  law,  violate 
the  Constitution.  Would  there  be -no  other  remedy,  but  for  the  people  to 
petition  that  state,  or  for  the  judges  of  that  state  to  decide  upon  the  consti- 
tionality  of  the  law?  Why  would  there  be  another  remedy?  Because 
the  Constitution,  having  bestowed  rights  upon  the  general  government,  a 
violation  of  the  Constitution  which  should  infringe  those  rights,  would 
justify  that  government  to  take  measures  for  its  own  preservation ;  because 
the  Constitution  does  not  leave  the  remedy  to  depend  upon  a  petition  of  the 
people  to  the  aggressor.  Reverse  the  case,  said  he.  If  Congress  should 
unconstitutionally  infringe  rights  reserved  to  the  state  governments,  should 
they  depend  upon  a  petition  of  the  people  to  the  aggressor  for  their 
defence?  They  were  then  conducted,  he  said,  to  this  clear  position,  that 
as  Congress  holds  the  rights  bestowed  by  the  Constitution  under  that,  and 
independent  of  the  states ;  so  the  states  hold  the  rights  reserved  by  the 
Constitution  under  that,  and  independent  of  Congress ;  and  of  course  that 
each  power  possesses  the  further  right  of  defending  those  constitutional 
rights  against  the  aggressions  of  the  other;  for  otherwise  it  would  follow, 
that  the  power  having  constitutional  rights,  to  maintain  which  was  how- 
ever unconstitutional,  must  presently  disappear. 

He  said,  that  the  last  argument  in  favour  of  the  sedition-act  had  been 
drawn  from  the  law  pf  Virginia  respecting  treason,  which  had  been  read. 

With  respect  to  this  law,  he  replied,  that  the  same  arguments  applied, 
which  he  had  before  used,  to  show  the  impropriety  of  quoting  state  laws, 
to  justify  congressional.  It  would  be  as  just  to  say,  that  a  state  could 
pass  laws  for  raising  fleets  and  armies,  because  Congress  had  done  so,  as 
that  Congress  could  infringe  the  liberty  of  speech,  because  the  states  had 
done  so.  The  states  are  expressly  forbid  to  do  the  one,  and  Congress  the 
other.  But  this  reference  to  the  treason  law  of  Virginia  furnished  a  strong 
argument  to  prove  the  unconstitutionality  of  the  sedition-act.  The  law 
evidently  considers  sedition  as  being  one  species  constituting  that  genus 
called  treason,  which  was  made  up  of  many  parts.  It  therefore  accurately 
expresses  the  idea, of  Virginia  of  the  word  "treason"  and  shows  how  she 
understood  it,  as  used  in  the  Constitution.  By  that,  treason  is  limited  to 
two  items,  with  the  punishment  of  which  only,  the  general  government  is 
entrusted.  Hence  it  was  evident,  that  Virginia  could  not  have  conceived 
that  Congress  could  proceed  constitutionally  to  that  species  of  treason 
called  sedition ;  and  if  this  was  not  the  true  construction,  what  security 
was  derived  from  the  restriction  in  the  Constitution  relative  to  treason? 
Congress  might  designate  the  acts  there  specified  by  that  term,  and  they 
might  apply  other  terms  to  all  other  acts,  from  correcting  w«hich,  that 
clause  of  the  Constitution  intended  to  prohibit  them ;  by  doing  which,  as 
in  the  case  of  sedition,  they  might  go  on  to  erect  a  code  of  laws  to  punish 
acts  heretofore  called  treasonable,  under  other  names,  by  fine,  confiscation, 
banishment  or  imprisonment,  until  social  intercourse  shall  be  hunted  by 
informers  out  of  our  country;  and  yet  all'might  be  said  to  be  constitu- 
tionally done,  if  principles  could  be  evaded  by  words. 

Mr.  Taylor  concluded  with  observing  that  the  will  of  the  people  was 
better  expressed  through  organized  bodies  dependent  on  that  will,  than  by 
tumultuous  meetings  ;  that  thus  the  preservation  of  peace  and  good  order 


122  DEBATE  ON  VIRGINIA  RESOLUTIONS. 

would  be  more  secure ;  that  the  states,  however,  were  clearly  parties  to 
the  Constitution,  as  political  bodies;  that  rights  were  reserved  to  them, 
which  reservation  included  a  power  of  preservation  ;  that  the  legislature 
of  the  state  was  under  a  double  obligation  to  oppose  infractions  of  the 
Constitution,  as  servants  of  the  people,  and  also  as  the  guardian  ©f  those 
rights  of  sovereignty,  and  that  qualified  independence  reserved  to  the  state 
governments  by  the  Constitution ;  and  to  act  up  to  this  duty  was  the  only 
possible  mode  of  sustaining  the  fabric  of  American  policy,  according  to 
the  principles  prescribed  by  the  American  Constitution. 

Mr.  BAYLEY  arose  next  to  reply,  he  said,  to  the  very  extraordinary 
arguments  which  had  fallen  from  the  gentleman  from  Caroline,  and  was 
proceeding  to  do  so;  but  finding  that  such  a  noise  prevailed,  from  the  im- 
patience of  the  committee  to  rise,  that  he  could  not  be  distinctly  heard,  he 
declined,  and  sat  down. 

On  motion,  the  committee  then  rose,  the  chairman  reported  progress, 
asked,  and  had  leave  for  the  committee  to  sit  again. 


IN  THE  HOUSE  OF  DELEGATES, 

Friday,  December  21,  1798. 

The  House  resolved  itself  into  a  committee  of  the  whole  House,  on  the 
state  of  the  commonwealth,  Mr.  Breckenridge  in  the  chair,  when  Mr. 
John  Taylors  resolutions  being  still  under  consideration, 

Mr.  GEORGE  K.  TAYLOR  arose,  and  said  that  when  these  resolutions 
were  first  submitted  to  the  committee,  they  had  been  disapproved  by  him  ; 
and  that  the  time  which  had  since  elapsed,  with  the  most  mature  reflection, 
had  quickened  his  disapprobation  into  complete  aversion  and  entire  disgust. 
The  resolutions  contained  doctrines  and  principles  the  most  extravagant 
and  pernicious ;  declarations  unsubstantiated  by  fact ;  and  an  invitation  to 
other  states  to  concur  in  a  breach  of  that  Constitution  which  they  professed 
to  support.  To  substantiate  this  charge,  he  would  beg  the  pardon  and 
patience  of  the  committee,  while  he  examined  and  criticised  certain  parts 
of  the  resolutions,  and  while,  agreeably  to  a  promise  given  on  a  former 
occasion,  he  should  offer  some  few  remarks  on  the  constitutionality  of  what 
is  called  the  sedition-law. 

The  third  clause  of  the  resolutions  begins  in  the  following  terms : 
"  That  this  Assembly  doth  explicitly  and  peremptorily  declare  that  it 
views  the  powers  of  the  Federal  Government  as  resulting  from  the  com- 
pact to  which  the  states  alone  are  parties."  This  declaration,  however 
explicitly  and  peremptorily  made,  was  unfounded  and  false :  the  states  are 
not  the  only  parties  to  the  federal  compact.  Considered  as  particular 
sovereignties  of  detached  parts  of  the  Union,  they  did  not  give  it  birth 
or  organization :  the  state  legislatures  were  not  consulted  respecting  its 


DEBATE  ON  VIRGINIA  RESOLUTIONS.  123 

adoption.  It  was  the  creature  of  the  people  of  United  America  ;  their 
voice  spoke  it  into  birth ;  their  will  upholds  and  supports  it.  To  demon- 
strate  this  it  would  be  necessary  to  recur  to  the  history  of  the  present 
Constitution,  and  to  examine  some  of  its  features. 

When  the  British  colonies  in  America,  now  the  United  States,  dissolved 
their  connexion  with  the  parent  country  and  declared  themselves  indepen- 
dent, tfyey  entered  into  certain  articles  of  confederation  and  union.  This 
was  an  act  of  the  states.  It  was  begun  by  the  state  representatives  in 
Congress.  The  articles  of  confederation,  when  digested,  were  sent  to  the 
legislatures  of  every  state  for  consideration.  They  were  ratified  by  the 
legislature  of  each  state  in  the  Union.  They  profess  themselves  to  be 
articles  of  confederation  and  perpetual  union  between  the  states :  they  re- 
late, in  every  article,  not  to  the  people,  but  to  the  states :  they  were  sub- 
mitted to,  and  adopted  by,  not  the  people,  but  the  states ;  and  of  them  it 
may  truly  be  said  that  they  were  "  a  compact  to  which  the  states  alone 
were  parties." 

As  these  articles  of  confederation  acted  exclusively  on  the  states,  and 
as  they  prescribed  no  method  of  compelling  delinquent  states  to  obey  the 
requisitions  of  Congress,  their  weakness  and  inefficacy  became  shortly 
visible.  The  most  pressing  demands  were  disregarded,  or  partially 
obeyed ;  and  the  evils  and  expenses  of  war  were  thus  protracted  and  in- 
creased. Still,  however,  the  American  spirit  and  love  of  freedom  rose 
superior  to  every  difficulty,  and  obtained,  after  an  arduous  struggle,  peace 
and  independence.  No  sooner  was  the  danger  removed  which  had 
hitherto  compelled  some  respect  to  the  recommendations  of  Congress,  than 
the  impotence  of  that  body  became  conspicuous,  and  the  futility  of  that 
plan  of  government  which  possesses  no  sanction  to  enforce  obedience  to  its 
laws  was  demonstrated.  In  defence  of  our  liberties  a  considerable  debt 
had  been  incurred.  Justice  and  policy  called  on  the  United  Slates  to  pay 
the  interest  of  this  debt,  if  they  could  not  discharge  the  principal ;  but 
they  called  in  vain.  Congress  indeed  recommended  that  a  duty  of  five 
per  cent,  ad  valorem,  should  for  this  purpose  be  laid  on  all  goods  imported 
into  the  United  States ;  but  their  recommendation  was  disregarded.  The 
certificate  given  to  the  soldier  for  his  toil  and  blood  in  the  day  of  battle, 
depreciated  and  became  worthless ;  every  public  contract  was  uncomplied 
with;  a  total  disregard  prevailed  as  to  national  sentiment  and  honour; 
symptoms  of  distrust,  jealousy,  and  rivalship  among  the  several  states  ap- 
peared. The  Union  seemed  fast  crumbling  into  annihilation,  and  the  national 
character  at  home  and  abroad  was  sunk  and  degraded.  The  people  of  Ame- 
rica began  to  be  sensible  of  their  situation.  Delegates  were  at  first  sent 
from  a  few  of  the  states  to  Annapolis,  for  the  purpose  of  devising  and  re- 
commending commercial  arrangements.  These  delegates  recommended 
that  a  convention  from  the  several  states  should  be  appointed  for  the  pur- 
pose of  revising  and  amending  the  articles  of  confederation.  Their  idea 
was  adopted.  Each  state  appointed  delegates  to  this  convention,  and  it 
assembled  at  Philadelphia,  for  the  purpose  of  proposing  amendments  to 
the  articles  of  confederation. 

The  deliberation  of  a  few  days  convinced  the  convention  that  an  amend- 
ment of  that  instrument  was  impracticable,  and  that  no  government  could 


124  DEBATE  ON  VIRGINIA  RESOLUTIONS. 

be  efficient  or  permanent  which  operated  not  on  the  individuals  of  the  com- 
munity, but  altogether  on  the  state  sovereignties,  and  which  could  not 
compel  obedience  to  its  laws  by  the  punishment  of  the  disobedient  and  re- 
fractory. They  adopted,  therefore,  a  plan  at  once  bold  and  judicious.  It 
was  to  recommend  a  new  form  of  government  for  general  purposes,  by 
taking  from  the  states  the  control  of  all  matters  relating  to  the  general 
welfare,  and  vesting  these  in  the  government  of  the  Union :  by  dividing 
this  government  into  legislative,  executive,  and  judiciary  departments, 
which  should  at  once  prescribe  and  enforce  the  rules  of  general  conduct, 
without  the  aid  or  intervention  of  the  state  legislatures,  and  which  should 
have  power  to  punish  the  disobedient  and  refractory. 

Here  it  was  to  be  observed,  he  said,  that  the  convention  acted  without 
the  express  authority  of  the  state  legislatures.  They  were  deputed  to 
amend  the  old  articles  of  confederation :  they  were  not  authorized  to  pro- 
pose new  forms  of  government.  Their  love  of  country,  indeed,  induced 
them  to  attempt  a  scheme  or  project  of  government  to  be  submitted  to 
their  fellow-citizens,  and  their  wisdom  enabled  them  to  accomplish  its 
structure.  But  the  state  governments  were  no  parties  to  this  project,  since 
they  deputed  the  authors  of  it  for  different  purposes,  and  were  ignorant  of 
the  change  about  to  be  recommended. 

That  the  convention  itself  did  not  consider  that  the  states  were,  or  would 
be  the  only  parties  to  this  compact,  was  evident  from  the  language  used 
in  the  commencement  of  the  new  Constitution :  "  We  the  people  of  the 
United  States,  in  order  to  form  a  more  perfect  union,  &c. ;"  not  "  we  the 
states  of  New  Hampshire,  &c. ;"  yet  they  had  the  old  articles  of  confede- 
ration before  them,  where  the  states  were  constantly  mentioned,  and  the 
people  not  once  named.  Why  was  the  word  "  states"  purposely  discarded, 
and  the  word  "  people"  purposely  introduced,  if,  as  these  resolutions  de- 
clare, the  states  alone  are  parties  to  the  compact  ? 

The  convention,  after  having  finished  the  Constitution,  came  to  the  fol- 
lowing resolutions : 

"  Resolved,  That  the  preceding  Constitution  be  laid  before  the  United 
States  in  Congress  assembled,  and  that  it  is  the  opinion  of  this  convention 
that  it  should  afterwards  be  submitted  to  a  convention  of  delegates  chosen 
in  each  state  by  the  people  thereof,  under  the  recommendation  of  its  legis- 
lature, for  their  assent  and  ratification ;  and  that  each  convention  assenting 
to  and  ratifying  the  same,  should  give  notice  thereof  to  the  United  States 
in  Congress  assembled. 

"  Resolved,  That  it  is  the  opinion  of  this  convention,  that  as  soon  as 
the  conventions  of  nine  states  shall  have  ratified  this  Constitution,  the  Uni- 
ted States  in  Congress  assembled,  should  fix  a  day  on  which  electors 
should  be  appointed,"  &c. 

The  former  articles  of  confederation  being  in  truth  a  compact  of  the 
states,  were  submitted  to  the  state  legislatures.  The  Constitution  of  the 
United  States  was  "  submitted  to  a  convention  of  delegates  chosen  in  each 
state  by  the  people  thereof."  The  articles  of  confederation  were  assented 
to  and  ratified  by  the  state  legislatures.  The  Constitution  of  the  United 
States  was  assented  to  and  ratified  by  conventions  chosen  in  each  state  by 
the  people  thereof.  If  the  states  in  their  political  corporate  capacity,  be  as 


DEBATE  ON  VIRGINIA  RESOLUTIONS.  125 

the  resolutions  declare,  the  only  parties  to  the  latter  compact,  why  was  its 
consideration  submitted  not  to  the  state  legislatures,  but  to  the  people  of 
the  United  States,  in  their  several  conventions? 

Again  :  so  soon  as  the  conventions  of  nine  states  should  have  ratified 
the  Constitution,  the  convention  recommended  that  a  day  should  be  fixed 
for  the  appointment  of  electors,  &c.,  in  order  that  the  government  should 
be  put  into  operation.  Why  should  the  commencement  of  the  operations 
of  the  government  be  postponed  until  the  conventions  of  nine  states  should 
have  ratified  the  Constitution  1  Because  the  states  were  extremely  unequal 
in  size  and  population,  and  consequently  a  majority  of  conventions  might 
have  ratified  the  Constitution,  when  in  truth  a  majority  of  the  whole  people 
had  rejected  it :  but  this  could  not  be  the  case  when  the  conventions  of 
nine  states  had  ratified  it ;  because  any  nine  states  formed  a  majority  of 
i\\Q  people  contained  in  the  thirteen.  Did  not  this  circumstance  then  prove, 
that  the  present  is  a  government  proceeding  from  the  people,  and  that  they 
are  material,  if  not  the  exclusive  original  parties  to  it?  If  so,  how  could 
it  be  sard  that  the  states  alone  are  parties  to  the  compact? 

Further :  the  fifth  article  to  the  Constitution  declares  that  "  the  Congress, 
whenever  two-thirds  of  both  Houses  shall  deem  it  necessary,  shall  propose 
amendments  to  this  Constitution,  or  on  the  applications  of  the  legislatures 
of  two-thirds  of  the  several  states,  shall  call  a  convention  for  proposing 
amendments."  In  each  of  these  modes  of  obtaining  amendments,  the 
people  are  evidently  recognised  as  parties  to  the  compact : — "  Congress, 
whenever  two-thirds  of  both  Houses  shall  deem  it  necessary,  shall  propose 
amendments:"  but  one  House  of  Congress,  the  House  of  Representatives, 
is  the  immediate  representative  of  the  people,  the  other  House,  the  Senate, 
is  the  immediate  representative  of  the  states;  whenever  then,  two-thirds  of 
the  representatives  of  the  people  and  two-thirds  of  the  representatives  of 
the  states  shall  concur  in  deeming  it  necessary,  they  may  propose  amend- 
ments. Was  not  this  a  recognition  that  the  people  generally,  as  well  as 
the  particular  state  sovereignties,  are  interested  in  the  operations  of  the  go- 
vernment? How  then  could  the  states  alone  be  said  to  be  the  parties  to 
it  ?  "  Or,  on  the  applications  of  the  legislatures  of  two-thirds  of  the 
several  states,  shall  call  a  convention  for  proposing  amendments."  Here 
the  idea  was  still  supported,  that  the  representatives  of  a  majority  of  the 
whole  people  must  combine  in  the  application,  which  majority  it  is  suppo- 
sable,  will  be  two-thirds  of  the  states.  The  article  proceeds  "  which 
(amendments)  in  either  case  shall  be  valid  to  all  intents  and  purposes,  as 
part  of  this  Constitution,  when  ratified  by  the  legislatures  of  three-fourths 
of  the  several  states,  or  by  conventions  in  three-fourths  thereof,  as  the  one 
or  the  other  mode  of  ratification  may  be  proposed  by  the  Congress."  Thus 
Congress  might  if  they  should  think  proper,  divest  the 'states  in  their  po- 
litical corporate  character,  of  all  agency  in  ratifying  amendments  by  sub- 
mitting them  not  to  the  legislatures  of  the  states,  but  to  conventions  of  the 
people.  Did  this  prove  that  the  states  alone  are  parties  to  this  compact  ? 

At  the  time  of  our  separation  from  the  government  of  Great  Britain, 
the  people  of  each  state  in  the  Union,  represented  in  convention,  esta- 
blished, for  that  state,  a  constitution  or  form  of  government.  This  having 
been  established  by  the  immediate  representatives  of  the  people,  deputed 


126  DEBATE  ON  VIRGINIA  RESOLUTIONS. 

for  that  particular  and  especial  purpose,  is  not  amendable  or  alterable  ex- 
cept by  the  same  people  or  their  representatives,  deputed  for  that  special 
purpose ;  yet  the  second  clause  of  the  sixth  article  of  the  Federal  Consti- 
tution, is  in  the  following  words :  "  This  Constitution  and  the  laws  of  the 
United  States,  which  shall  be  made  in  pursuance  thereof,  and  all  treaties 
made,  or  which  shall  be  made  under  the  authority  of  the  United  States, 
shall  be  the  supreme  law  of  the  land,  and  the  judges  in  every  state  shall 
be  bound  thereby,  anything  in  the  constitution  or  laws  of  any  state  to 
the  contrary  notwithstanding."  By  this  clause,  the  Constitution,  laws 
and  treaties  of  the  United  States,  are  declared  to  be  paramount  and 
superior  to  the  constitution  and  laws  of  every  particular  state ;  and 
where  they  may  come  into  collision,  the  latter  must  yield  to  the  former. 
Who  could  have  deprived  the  state  constitutions  of  their  former  supremacy, 
and  made  them  subservient  not  only  to  the  Constitution,  but  to  constitu- 
tional laws  and  treaties  of  the  United  States,  except  the  sovereign  people, 
the  source  and  fountain  of  all  power?  And  after  this  should  we  be  told 
that  the  states  alone  are  parties  to  the  compact,  when  so  plain  and  palpa- 
ble a  proof  was  exhibited  to  the  contrary  1* 

Let  those,  said  Mr.  Taylor,  who  charge  us  with  anti-republican  senti- 
ments, and  with  political  blindness  or  heresy,  examine  this  part  of  their 
own  creed,  and  declare  whether  it  savours  of  republicanism  or  orthodoxy  1 
We  have  long  and  fondly  cherished  the  idea,  that  all  government  in 
America  was  the  work  and  creature  of  the  people ;  we  have  regarded 
them  with  reverence  and  bowed  down  before  their  supremacy.  But  it  was 
reserved  for  this  period  and  for  this  Legislature  to  convince  us  of  our 
error,  and  to  prove  that  in  America,  as  in  Turkey  and  in  France,  the 
people  are  nothing,  and  that  the  state  legislatures  are  everything. 

The  fourth  clause  of  the  resolutions  is  in  the  following  words  :  "  That 
the  General  Assembly  doth  express  its  deep  regret,  thai  a  spirit  has  in 
sundry  instances  been*  manifested  by  the  Federal  Government  to  enlarge 
its  powers  by  forced  constructions  of  the  constitutional  charter  which  de- 
fines them ;  and  that  indications  have  appeared  of  a  design  to  expound 
certain  general  phrases,  (which  having  been  copied  from  the  very  limited 
grant  of  powers  in  the  former  articles  of  confederation,  were  the  less 
liable  to  be  misconstrued,)  so  as  to  destroy  the  meaning  and  effect  of  the 
particular  enumeration,  which  necessarily  explains  and  limits  the  general 
phrases,  and  so  as  to  consolidate  the  states  by  degrees,  into  one  sovereignty, 
the  obvious  tendency  and  inevitable  result  of  which  would  be  to  transform 
the  present  republican  system  of  the  United  States  into  an  absolute,  or  at 
best,  a  mixed  monarchy" 

The  charge  against  the  Federal  Government,  contained  in  this  clause, 
Mr.  Taylor  said,  was  of  the  most  serious  nature,  and  merited  mature  de- 
liberation before  it  should  be  adopted.  If  it  be  true,  that  government  was 
criminal  indeed,  and  merited,  not  reprehension  only,  but  the  severest 
chastisement ;  if  it  be  true,  the  present  administrators  of  that  government 
should  be  hurled  from  their  seats  with  universal  execration,  and  submitted 
to  the  vengeance  of  a  justly  enraged  people.  If  it  be  true,  it  was  our  duty 

*  The  answer  to  this  ingenious  train  of  reasoning  is  given  in  the  Report,  post,  p.  191. 


DEBATE  ON  VIRGINIA  RESOLUTIONS.  127 

to  advise,  and  it  was  the  duty  of  our  constituents  to  practise  opposition 
and  resistance ;  to  draw  the  sword  from  the  "  sleep  of  its  scabbard,"  and 
to  cut  out  this  foul  cancer  before  its  roots  shall  have  taken  too  fatal  a 
spread.     But,  was  it  true  1     If  it  be,  in  what  instance  was  it  so  ?     The 
resolutions  declared,  that  "  a  spirit  to  enlarge  its  powers,  and  to  CONSOLI- 
DATE THE  STATES,  so  as  to  introduce  MONARCHY,  has  been  manifested  by 
the  general  government  in  sundry  instances."   What  were  those  instances  ? 
Would  it  not  have  been  kind  and  proper  to  enumerate  them,  when  it  was 
to  enlighten  the  blindness  of  those  less  keen-sighted  than  our  legislative 
illuminati  ?     For  we,  said  he,  who  approve  not  these  resolutions,  discern 
not  in  the  government  these  "  forced  constructions  of  the  constitutional 
charter ;"  those  "  designs  to  consolidate  the  states  by  degrees  into  one 
sovereignty ;"  those  unconstitutional  efforts  "  to  enlarge  its  powers  so  as 
to  transform  the  present  republican  system  into  an  absolute,  or  at  best,  a 
mixed  monarchy."    On  the  contrary,  said  he,  we  suppose  that  we  see  the 
best  form  of  government  ever  devised  by  human  sagacity,  wisely  adminis- 
tered, so  as  to  promote  and  increase  the  general  prosperity  and  happiness 
of  the  people.     We  ask,  where  is  there  seen  so  much  real  happiness, 
prosperity,  and  liberty  as  in  these  United  States?     We  demand,  whether 
the  sun,  from    his  rising  in  the   morning,  until  his  setting  beams  are 
quenched  in  the  west,  beholds  so  fortunate  a  people?     Why,  then,  should 
we  interrupt  their  repose,  disturb  their  harmony,  and  poison  their  tran- 
quillity, by  unfounded  suggestions,  that  their  government  means  to  rivet 
monarchy  upon  them  ?     The  "  sundry  instances"  of  this  intention,  men- 
tioned during  this  debate,  were  a  fleet,  an  army,  taxes,  the  alien  and  sedi- 
tion-laws.    What  causes  have  given  birth  to  these  measures?    A  precon- 
certed plan  of  the  government  to  introduce  monarchy  ?    No !  They  derive 
their  origin  from  a  more  noble  source ;  from  a  determination  to  reject, 
with  disdain,  the  insolent  demand  of  tribute  to  a  foreign  nation  ;  from  a 
proper  care  to  protect  our  commerce  from  the  piratical  depredations  of 
that  nation,  and  from  a  fixed  resolve  to  vindicate  our  soil  from  hostile  in- 
vasion.    Let  us,  I  pray  you,  said  he,  recollect  the  history  of  late  events. 
Has  not  our  government  sent  repeated  embassies  to  France,  and  have  not 
those  embassies  been  repeatedly  and  contumeliously  rejected  ?     Was  not 
General  Pinckney  threatened  with  imprisonment?     Were  not  the  three 
envoys  insulted  with  a  demand  that  their  country  should  become  tributary 
to   France  ?    and   was   not    that   country   threatened   with   the   fate   of 
Venice  if  the  demands  should  be  refused?     Was  there  a  man  among  us 
who  could  bear  the  idea  of  paying  tribute  to  any  foreign  country  ?     And 
when  the  consequence  of  the  refusal,  has  been  aggravated  depredations  on 
our  trade,  and  the  threat  of  erasing  us  from  the  list  of  nations,  was  there 
one  so  base  who  would  not  prepare  for  defence  ?    What  was  the  situation 
of  things  when  our  small  navy  was  first  equipped  ?    Numbers  of  French 
picaroons  at  the  mouths  of  all  our  principal  rivers,  lay  in  wait  for  our 
ships,  and  few  of  them  escaped.    What,  said  he,  has  been  the  consequence 
since  that  navy  has,  been  equipped?     These  pirates  have  been  chased  to 
their  homes  ;  our  coasts  are  no  longer  insulted ;  the  price  of  the  produc- 
tions of  our  soil  has  increased,  and  our  flag  floats  on  the  ocean,  respecta- 
ble and  respected.     Was  not  this  measure  more  wise,  more  patriotic,  and 


128  DEBATE  ON  VIRGINIA  RESOLUTIONS. 

more  economical  than  to  have  permitted  our  trade  still  to  be  the  prey  of 
French  cruisers,  and  to  have  suffered  a  vital  wound  to  be  inflicted  on  the 
industry  and  happiness  of  our  citizens,  from  the  diminished  value  of  their 
commodities,  which  would  have  been  the  unavoidable  result?  Will  not, 
said  he,  this  navy  enable  us,  in  case  of  invasion,  to  transport  men  and 
the  munitions  of  war  immediately  and  expeditiously  from  one  port  to 
another  of  the  Union  ?  Will  it  not  be  able  to  gall  and  distress  an  invading 
enemy  ?  Why,  then,  shall  so  wise  and  so  necessary  a  measure  be  construed 
into  an  effort  to  crush  republicanism  and  establish  monarchy  on  its  ruins? 

But  the  regular  army  which  is  to  be  raised  will  be  the  death  of  our 
liberty.  Standing  armies  in  all  countries  have  been  the  engines  of  des- 
potism, and  they  will  become  so  in  this. 

Fortunately  there  are  two  clauses  in  the  Constitution  of  the  United 
States,  which  prove  that  so  long  as  the  representatives  of  the  people  remain 
uncorrupt,  no  great  danger  can  be  apprehended  from  standing  armies. 
The  first  clause  of  the  seventh  section  of  the  first  article  declares,  that 
"  all  bills  for  raising  revenue  shall  originate  in  the  House  of  Representa- 
tives." The  twelfth  clause  of  the  eighth  section  of  the  same  article  gives 
Congress  power  to  "raise  and  support  armies,"  but  declares,  "  that  no 
appropriation  of  money  for  that  use  shall  be  for  a  longer  term  than  two 
years."  It  is  Congress,  and  not  the  President,  who  are  to  "  raise  and 
support  armies."  Armies  cannot  be  raised  and  supported  without  revenue. 
The  bills  for  raising  this  revenue  must  originate  in  the  House  of  Repre- 
sentatives. Appropriations  of  money  to  raise  and  support  an  army,  shall 
not  be  for  a  longer  term  than  two  years.  The  House  of  Representatives 
itself  is  elected  for  two  years  only.  After  a  first,  or  at  most  a  second 
appropriation  for  this  purpose,  a  new  election  of  representatives  must 
take  place.  If  the  new  House  of  Representatives  deem  the  -army 
useless  or  dangerous,  they  will  refuse  to  appropriate  for  its  support, 
and  it  must  be  disbanded.  Thus  the  danger  to  be  apprehended  from 
an  army  raised  for  an  indefinite  period  appears  not  to  be  great.  But 
the  present  army,  from  the  terms  of  its  enlistment,  was  to  continue 
in  service  only  during  the  existing  differences  with  France.  After  they 
shall  cease  it  will  be  disbanded,  and  while  they  continue  it  must  be 
necessary.  For  let  it  be  remembered  that  our  foe  possesses  a  lust  of 
dominion  insatiable ;  armies  numerous  and  well-disciplined,  inured  to 
conquest  and  flushed  with  victory,  officers  alert  and  skilful,  commanders 
distinguished  and  renowned.  Let  it  be  remembered  that  she  is  as  destitute 
of  friends  as  of  principle,  and  that  as  she  has  sent  one  army  under  Bona- 
parte to  pillage  the  East,  as  a  compensation  for  their  services  she  may 
send  another  for  the  same  purposes  to  rifle  the  West.  Against  this  host 
of  invaders,  hungry  as  death  and  insatiable  as  the  grave,  shall  we  oppose 
only  militia?  In  such  a  conflict  what  would  be  our  chance?  A  band  of 
militia  ill-armed  and  completely  undisciplined,  to  measure  weapons  with 
men  inured  to  blood,  and  with  whom  murder  is  a  science !  How  long 
would  our  militia  be  able  to  remain  in  the  field  ?  Each  man  among  them 
would  at  first  be  hurried  from  his  plough,  and  from  the  embraces  of  his 
wife  and  children,  with  scarcely  a  moment's  warning.  That  wife  and 
those  children  would  soon  require  his  return,  or  the  farm  would  remain 


DEBATE  ON  VIEGINIA  RESOLUTIONS.  129 

uncultivated,  and  distress  and  misery  would  be  their  portion.  The  first 
detachment  of  militia  must  then  within  three  or  four  months  be  relieved 
by  another.  At  the  moment  when  they  have  formed  an  idea  of  the  first 
rudiments  of  war,  they  would  be  succeeded  by  others  completely  new  and 
undisciplined.  Was  an  army  thus  composed,  likely  to  prove  effectual  in 
resisting  the  invasion  of  veterans  inured  to  combat  and  accustomed  to 
victory  ?  Did  the  experience  of  the  late  war  with  Great  Britain  demon- 
strate the  superlative  efficacy  of  militia?  Why  were  the  Southern  States 
plundered,  ravaged,  and  for  a  time  subdued  by  Cornwallis  ?  Because  he 
was  opposed  principally  by  militia,  whose  want  of  skill  could  not  resist 
the  British  bayonet.  Was  the  patriotism  of  the  men  of  1776  to  be  now 
disputed  ?  It  could  not  be  ;  yet  they  had  recourse  to  regular  soldiers,  by 
whom  the  great  and  important  victories  of  America  were  obtained,  and 
who,  when  peace  was  re-established,  although  unpaid  and  distressed,  re- 
turned peaceably  to  their  homes  and  their  firesides.  Of  whom  was  that 
army  composed  1  Of  our  fathers  and  our  brethren.  Of  whom  will  the 
present  army  be  composed  ?  Of  our  brethren  and  our  sons.  Who  led 
that  army  to  battle  and  to  conquest?  WASHINGTON.  Who  will  conduct 
this  ?  The  same  great  and  good  WASHINGTON.  Will  he  whose  virtue 
and  honour  have  been  proved  in  the  most  trying  seasons  ,*  whose  fame 
has  never  been  surpassed  in  the  annals  of  mankind,  and  who  is  the  con- 
stant theme  of  applause  and  admiration  throughout  the  globe,  in  his  latter 
days  prove  so  degenerate  as  to  become  the  tool  of  ambition  and  the  de- 
stroyer of  liberty  ?  Of  that  liberty  which  his  exertions  established,  and  of 
that  Constitution  which  he  contributed  to  frame,  to  organize,  and  to  ad- 
minister ?  The  idea  was  too  absurd  to  be  seriously  entertained,  and  there- 
fore this  part  of  the  subject,  he  said,  he  would  dismiss  with  the  following 
observation  : — A  regular  army  was  principally  composed  of  men  who, 
having  from  choice  embraced  the  military  profession,  did  not  by  their 
absence  materially  impede  the  labour  of  the  society,  or  occasion  domestic 
difficulties  and  distress  :  of  militia,  a  great  proportion  were  fathers  of 
families,  whose  absence  from  their  homes  was  extremely  inconvenient  and 
ruinous.  The  death  of  the  regular  soldier  was  of  little  comparative  im- 
portance— the  death  of  the  militiaman,  who  leaves  behind  him  a  wife  and 
family  of  young  children,  was  a  serious  evil.  The  regular  army  was 
prompt,  skilful,  and  effectual ;  the  militia  army  must  always  be  languid 
in  its  operations,  undisciplined,  and  ineffectual.  Instead,  then,  of  aiming 
at  monarchy,  our  government  labours,  by  the  establishment  of  this  army, 
to  secure  success  to  our  efforts  for  freedom,  and  to  spare  a  lavish  and 
ruinous  waste  of  the  blood  of  our  citizens. 

Taxes,  he  said,  are  the  necessary  result  of  warlike  preparations.  These 
we  have  been  compelled  to  adopt,  by  the  insolence,  the  machinations,  and 
the  hostilities  of  France.  They  are  the  present  price  of  our  indepen- 
dence :  and  where  the  stake  is  so  precious,  no  real  American  could  be- 
grudge them. 

In  the  fifth  clause  of  the  resolutions,  "  the  General  Assembly  doth  par- 
ticularly protest  against  the  palpable  and  alarming  infractions  of  the  Con- 
stitution, in  the  two  late  cases  of  the  alien  and  sedition-acts  passed  at  the 
last  session  of  Congress." 

9 


130  DEBATE  ON  VIRGINIA  RESOLUTIONS. 

On  the  subject  of  the  alien-law,  Mr.  Tai/lor  observed,  thut.  IK;  had 
before  given  his  ideas  at.  large,  and  should  ut  present  only  repeat  that 
from  the  authorities  adduced  by  him  on  a  former  oecn.sion,  and  from  Un- 
reason of  the  thing,  it  appeared  that  the  entry  of  an  alien  into  any  coun- 
try was  matter  of  favour  in  the  sovereign  power  of  that  country,  and  not 
matter  of  right  on  the  part  of  the  alien.  During  his  slay,  tin;  country  t<> 
which  he  has  migrated  affords  him  hospitality  and  protection:  during  the 
same  period,  he  owes  respect  and  obedience  to  its  laws.  But  the  country 
exacts  from  him  no  allegiance:  he  is  not  bound  to  li^ht  the  battles  oftliat 
country:  he  is  exempt  from  serving  in  the  militia :  he  is  not  subject,  to 
the  taxes  that  have  only  a  relation  to  the  citizens :  he  retains  all  his  ori- 
ginal privileges  in  the  country  which  gave  him  birth :  the  state  in  which 
he  resides  has  no  right  over  his  person,  except  when  he  is  guilty  of  crime: 
he  is  not  obliged  like  the  citizens,  to  submit  to  jill  the  commands  of  the 
sovereign:  but,  if  such  things  are  required  from  him  as  ho  is  not  willing 
to  perform,  he  may  at  will  quit  the  country.  The  government  has  no 
right  to  detain  him  except  for  a  time,  and  for  very  particular  reasons. 
The  writers  on  the  law  of  nations  therefore  universally  ai>rce  that  the 
nation  has  a  right  to  send  him  away  whenever  his  stay  becomes  inconve- 
nient or  dangerous  to  its  repose. 

The  Constitution  of  the  United  States,  from  its  preamble,  and  from 
every  article  and  section  of  the  instrument,  demonstrates  that  it  was  the 
intention  and  design  of  its  framcrs  to  vest  every  power  relating  to  the 
general  welfare  and  tranquillity  of  the  Union  in  the  General  Government. 
Each  particular  case  could  not  be  foreseen  ;  and  therefore  the  powers  are 
given  in  general  terms,  and  conclude  with  the  particular  power  "  to  make 
all  laws  which  shall  bo  necessary  and  proper  for  carrying  into  execution 
the  foregoing  powers,  and  all  other  powers  vested  by  the  Constitution  in 
the  Government  of  the  United  States,  or  in  any  department  or  officer 
thereof."  With  this  palpable  intention  of  its  framers  in  our  view,  we 
ought  to  give  to  the  instrument  a  liberal  as  well  as  candid  interpretation. 
If  the  General  Government  possesses  not  the  power  of  removing  danger- 
ous aliens,  but  that  power  is  vested  exclusively  in  the  particular  states, 
one  of  the  principal  views  of  the  old  confederation  would  remain  in  all  its 
vigour.  While  through  the  instrumentality  of  these  characters  insurrec- 
tion and  treason  are  maturing  into  birth,  the  Government  will  of  itself  In- 
unable  to  avert  the  mischief,  and  must  humbly  supplicate  sixteen  indepen- 
dent and  jealous  sovereignties  to  carry  its  designs  for  the  public  safety 
into  effect.  It  must  disclose  to  each  state  the  most  important  and  delicate 
secrets,  as  that  state  will  require  testimony  before  it  begins  to  act.  It  may 
in  repeated  instances  be  subjected  to  the  mortification  and  danger  of  a 
refusal,  and  the  alien  might  frequently  depart  from  one  state  willing  to 
exclude  him,  and  take  refuge  in  another  determined  to  protect  him.  Thus 
the  peace  and  safety  of  the  Union  might  at  all  times  be  endangered ;  and 
the  same  government  which  can  declare  war  against  the  foreign  nation, 
shall  not  before  that  event  takes  place,  be  able  to  exclude  from  its  soil  the 
most  dangerous  and  abandoned  subject  of  that  nation,  although  his  resi- 
dence may  be  the  bane  of  public  tranquillity. 

Congress  has  power  "  to  provide  for  calling  forth  the  militia,  to  execute 


DEBATE  ON  VIRGINIA  RESOLUTIONS.  131 

the  laws  of  the  Union,  suppress  insurrections,  and  repel  invasions."  When 
the  insurrection  or  invasion  ////,s  taL r//.  place,  Congress  may  by  the  militia 
suppress  the  one,  and  repel  the  other.  But  the  Constitution  declares  fur- 
ther, that  •'  iho  United  States  shall  guarantee  to  every  state  in  this  Union 
a  republican  form  of  government,  and  shall  protect  each  of  them  against 
invasion;  and  on  application  of  the  legislature,  or  of  the  executive, 
(when  the  legislature  cannot  ho  convened,)  against  domestic  violence." 
Tin;  power  before  recited  had  given  Congress  power  to  call  forth  the 
militia  to  .SV//^/T.S.V  insurrections,  and  repel  invasions.  The  section  last 
mentioned  directs  them  is  protect  each  state  against  invasion  and  domestic 
violence.  Arc  these  two  clauses  of  precisely  the  same  meaning  and  im- 
port 1  Then  the  IVumers  of  the  Constitution  were  guilty  of  tautology.  But 
they  are  not  of  the  same  import.  The  first  gives  the  power  of  suppress- 
ing insurrections,  and  repelling  invasions,  when  insurrections  or  invasions 
should  exist :  the  latter  directs  Congress  to  protect  each  state  against  in- 
vasions or  domestic  violence,  which  might  threaten  and  impend.  Protec- 
tion necessarily  implies  and  includes  the  prevention  of  mischief  and  dan- 
ger. In  protecting  the  states  then  against  invasion,  Congress  must  use 
the  means  of  preventing  the  evil ;  and  the  clause  before  recited  gives  them 
in  express  terms  the  power  to  make  all  laws  necessary  and  proper  for 
carrying  into  execution  any  power  vested  in  them  by  the  Constitution. 
Congress  then  foresaw,  from  the  dispute  existing  between  the  United 
Slates  and  France,  that  war  might  bo  the  probable  result,  and  that  inva- 
sion might  ho  the  consequence  of  war.  To  protect  the  states  against  this 
invasion,  a  proper  measure  appeared  to  be  the  exclusion  of  dangerous 
aliens.  They  were  vested  by  the  Constitution  with  power  to  pass  all  laws 
necessary  and  proper  to  protect  the  states  against  invasion,  and  they 
therefore  constitutionally  passed  the  alien-law. 

I !ut  against  this  construction  of  the  Constitution,  Mr.  Taylor  said,  a 
gentleman  from  Orange  had  given  the  committee  an  extract  from  Publius, 
of  which  it  could  only  be  said,  that  the  doctrine  contained  therein,  although 
unquestionably  sound  and  incontrovertible,  did  not  apply  to  the  present 
question.  To  prove  this,  let  the  extract  itself,  he  said,  be  read  again.  It 
is  in  the  following  words :  "  It  has  been  urged  and  echoed  that  the  power 
to  lay  and  collect  taxes,  duties,  imposts  and  excises,  to  pay  the  debts,  and 
provide  for  the  common  defence  and  general  welfare  of  the  United  States, 
amounts  to  an  unlimited  commission  to  exercise  every  power  which  may 
he  alleged  to  be  necessary  for  the  common  defence  or  general  welfare." 
No  stronger  proof  could  have  been  given  of  the  distress  under  which 
these  writers  labour  for  objections,  than  their  stooping  to  such  a  miscon- 
struction. 

Had  no  other  enumeration  or  definition  of  the  powers  of  the  Congress 
been  found  in  the  Constitution,  than  the  general  expressions  just  cited,  the 
authors  of  the  objection  might  have  had  some  colour  for  it;  though  it 
would  have  been  difficult  to  find  a  reason  for  so  awkward  a  form  of  de- 
scribing an  authority  to  legislate  in  all  possible  cases.  A  power  to  destroy 
the  freedom  of  the  press,  the  trial  by  jury,  or  even  to  regulate  the  course 
of  descents,  or  the  forms  of  conveyances,  must  be  very  singularly  ex- 
pressed by  the  terms  "  to  raise  money  for  the  general  welfare."  Publius 


132  DEBATE  ON  VIRGINIA  RESOLUTIONS. 

afterwards  proceeds  to  state  other  arguments  exposing  the  fallacy  of  the 
opinion  urged  by  the  opposers  of  the  Constitution  against  this  article.  But 
let  it  be  remembered  that  the  subject  which  Publius  was  discussing  was 
this,  whether  the  power  given  Congress  "  to  lay  and  collect  taxes,  duties, 
imposts,  and  excises,  to  pay  the  debts,  and  provide  for  the  common  de- 
fence and  general  welfare,"  gave  to  Congress  a  right  of  legislating  on 
every  subject  whatsoever.  Now,  who  among  us,  said  Mr.  Taylor,  has 
cited  this  clause  in  favour  of  the  alien-law?  Has  any  one  of  us,  continued 
he,  contended  that  Congress  possesses  the  right  of  legislating  on  every 
subject?  And  because  this  clause  does  not  give  them  such  a  power,  did  it 
follow  that  the  power  to  protect  the  states  from  invasion  does  not  autho- 
rize them,  on  the  prospect  of  war,  to  exclude  dangerous  aliens  ?  Some 
authority  more  applicable  must  be  produced  before  we  shall  be  proved  to 
be  in  the  wrong.  In  defence  of  the  alien-law,  Mr.  Taylor  observed,  that 
he  would  make  no  further  observations,  but  would  call  the  attention  of  the 
committee  for  a  few  minutes,  to  what  is  called  the  sedition-law.  In  his 
remarks  on  this,  from  the  wide  range  he  had  taken,  he  should  be  com- 
pelled to  be  much  more  concise  than  he  had  intended  to  be. 

He  presumed  that  it  would  be  conceded  by  all  who  heard  him,  that  each 
individual  possessed  from  nature  certain  rights  of  great  value  and  impor- 
tance.    Among  these  was  the  right  to  liberty  and  to  life ;  and,  what  was 
of  no  smaller  importance  than  the  other  two,  the  right  to  his  good  name 
and  reputation.     For  even  in. a  state  of  nature,  where  the  will  of  each  in- 
dividual was  his  law,  and  his  power  the  measure  of  that  law,  and  where 
consequently  eternal  strife  and  confusion  must  prevail,  a  good  name  would 
be  of  no  small  importance  to  its  possessor.     He,  who  when  chance  or 
misfortune  had  thrown  his  brother  savage  into  his  power,  did  not  rob  or 
abuse  him,  but  bound  up  his  wounds  and  dismissed  him  in  peace,  would 
be  respected  by  the  man  he  had  benefited,  and  by  all  others  who  should 
hear  of  the  circumstance,  and  would  in  consequence  be  in  some  degree 
secure  against  insult  and  attack.     But  in  a  state  of  society  the  possession 
of  reputation  must  for  obvious  causes  be  of  infinite  importance.     This 
state  was  the  result  of  a  compact  formed  by  the  component  individuals  for 
the  enjoyment  of  their  natural  rights  to  greater  advantage  and  with  greater 
certainty.    Each  owes  to  the  regulations  of  the  society  implicit  obedience  ; 
and  the  society  is  equally  bound  to  guarantee  and  to  vindicate  to  each,  his 
natural  and  social  rights.    Invasions  therefore,  against  property,  liberty,  or 
life,  have  been  punished  in  every  society  and  under  every  form  of  govern- 
ment ;  but  the  natural  right  to  reputation  is  as  dear  and  invaluable  to  its 
possessor  as  any  other  whatsoever ;  it  is  essential  to  his  comfort  and  hap- 
piness ;  he  could  never  Ibe  supposed  to  have  consented  to  its  surrender ; 
and  invasions  of  it  ought,  therefore,  to  be*  punished  by  the  society  as  well 
as  invasions  of  property,  liberty,  or  life.    For  no  possession  whatsoever  is 
of  such  real  value  as  an  honest  fame :  in  comparison  with  it,  the  possession 
of  property  is  of  little  consequence.    Property,  in  reality,  adds  nothing  to 
the  respectability  of  its  possessor.     When  lost  it  may  be  regained ;  or  if 
for  ever  lost,  its  former  owner  may  still  be  respectable.     But  the  loss  of 
reputation  is  a  much  more  serious  mischief.     It  is  irretrievable.     Who 
could  bear  to  be  regarded  by  his  fellow-citizens  as  destitute  of  principle 


DEBATE  ON  VIRGINIA  RESOLUTIONS.  133 

and  honour,  and  .to  be  viewed  by  the  world  with  contempt  and  detestation? 
Who  would  be  unaffected  at  being  deprived  by  the  stroke  of  calumny  of 
the  friend  he  loved?  Whose  feelings  would  remain  untortured,  when  the 
mistress  he  adored,  whose  smiles  were  those  of  affection,  and  whose  eyes 
proclaimed  the  dominion  of  love,  should  be  everlastingly  estranged  from 
him  ?  When  that  bosom  which  before  glowed  with  genial  and  sympathetic 
fires,  should,  touched  by  the  breath  of  calumny,  become  cold  and  icy  as 
the  everlasting  snows  that  envelope  the  pole  ?  Such,  were  the  mischiefs 
accruing  from  the  loss  of  reputation  to  the  individual  in  his  private  capa- 
city. But  suppose  him  possessed  of  those  virtues  which  dignify  human  exis- 
tence, and  of  those  talents  which  adorn  it,  and  wishing  to  exert  those  virtues 
and  those  talents  in  a  public  capacity  for  the  benefit  of  his  fellow-citizens  ; 
if  his  reputation  be  blasted,  or  his  character  tainted,  he  would  be  spurned 
by  those  citizens  from  their  presence  :  his  talents  would  render  him  an  ob- 
ject of  greater  odium  :  he  would  remain  hated  and  despised  through  life, 
and  execrated  even  after  his  death.  Was  the  loss  of  property  then  to  be 
compared  with  this  injury  ?  Nay,  was  not  the  loss  of  character  equal  or 
superior  in  mischief  to  the  loss  of  existence?  TJie  murdered  man  dies  an 
object  of  universal  sympathy  and  regret, — the  recollection  of  his  virtues  is 
cherished,  and  his  foibles  and  vices  are  excused  or  forgotten.  But  the 
man  whose  reputation  is  tainted,  lives  an  object  of  universal  contempt  and 
disgust,  and  dies  the  theme  of  infamy  and  execration.  Accordingly  in 
every  society,  and  throughout  all  time,  a  remedy  has  been  afforded  to  the 
injured  individual  for  calumnious  attacks  upon  his  reputation.  And  what 
would  be  the  consequence  of  impunity  to  such  an  offence  ?  The  injured 
man,  having  no  redress  from  the  laws  of  his  country,  would  arrogate  to 
himself  the  right  of  revenge,  and  a  mournful  scene  of  assault,  bloodshed 
and  death,  would  be  the  unavoidable  and  melancholy  result.  These  things 
could  not  be  tolerated  in  a  state  of  society ;  and  accordingly  slander  and 
libels  are  punished  with  us  by  the  common  law.  By  the  common  law  is 
understood  the  unwritten  law  of  nature  and  reason,  applying  to  the  com- 
mon sense  of  every  individual,  and  adopted  by  long  and  universal  consent. 
This  common  law  attaches  itself  to  every  government  which  the  people 
may  establish.  It  existed  in  Great  Britain  when  our  ancestors  migrated 
from  that  country,  and  it  followed  them  to  this.  It  prevailed  in  every 
state  throughout  the  Union,  before  their*  separation  from  the  British  empire, 
and  it  regulates  the  whole  American  people  now.  A  government,  then, 
established  by  that  people  for  the  general  safety  and  general  happiness, 
will  of  necessity  be  guided  in  cases  of  general  interest  and  concern,  by  the 
principles  and  regulations  of  the  same  common  law.  By  that  common 
law,  unfounded  calumny  of  magistrates  generally,  was  matter  of  punish- 
ment, of  a  more  severe  punishment  than  in  cases  affecting  the  reputation 
of  private  individuals,  because  in  the  former  instance  i\\Q  function  rather 
than  the  man  was  the  object  of  attack.  And  whenever  magistrates  of  a 
new  description  are  appointed,  the  old  principles  of  the  common  law  im- 
mediately apply  to  them,  and  calumnies  against  them  are  of  course  punish- 
able. Thus  when  these  states  became  independent  of  Great  Britain,  a 
number  of  officers  of  government  were  created  unknown  to  the  former  co- 
lonial establishments ;  but  no  one  had  ever  thought  it  necessary  to  declare 


134  DEBATE  ON  VIRGINIA  RESOLUTIONS. 

by  statute,  that  slanders  of  them  shall  be  punishable.  When  the  Consti- 
tution of  the  United  States  was  formed,  a  new  description  of  officers,  before 
unknown,  was  created :  the  common  law  pervaded  and  regulated  every 
portion  of  the  people  which  formed  that  Constitution ;  and  consequently 
the  rules  of  the  common  law  immediately  attached  themselves  to  those 
officers.  Consequently  slanders  of  the  President  of  the  United  States,  of 
members  of  Congress,  and  of  other  officers  of  the  general  government,  are 
punishable  by  the  common  law  ;  because  slanders  of  those  characters  are 
injuries  not  so  much  to  the  man,  as  to  the  community.  Ours  is  a  govern- 
ment which  must  rest  for  its  support  on  the  public  sentiment.  While  the 
people  approve  it,  it  will  flourish ;  when  they  withdraw  their  affections,  it 
must  expire.  Unfounded  calumnies  against  the  officers  of  government, 
who  administer  and  conduct  it,  tend  to  weaken  the  confidence  and  affection 
of  the  people  for  the  government  itself.  The  Constitution  of  the  United 
States,  it  is  acknowledged  by  all,  authorizes  the  government  to  punish  acts 
of  resistance  to  its  measures.  Would  it  not  be  strange,  if,  when  it  autho- 
rizes them  to  punish  acts  of  resistance,  it  should  prevent  them  from  pu- 
nishing acts  tending  to  introduce  resistance  1  That  the  government  must 
look  on  tame  and  passive  while  the  mischief  is  preparing,  and  be  incapa- 
ble of  action  until  that  mischief  has  ripened  into  effect,  when  its  actions 
and  operations  may  perhaps  be  unavailing.  That  it  shall  be  fully  able  to 
suppress  and  punish  actual  insurrection,  but  shall  be  incapable  of  prevent- 
ing it.  This  would  surely  be  absurd.  And  as  the  Constitution  of  the 
United  States  is  the  work  of  the  whole  American  people ;  as  every  man  of 
that  people  is  regulated  by  the  common  law  ;  as  that  common  law  attaches 
itself  to  the  state  governments,  established  by  that  people,  and  punished 
unfounded  calumnies  of  state  magistrates,  why  shall  it  be  said  not  to 
attach  itself  to  the  government  of  the  whole  American  people  ?  And  why 
shall  it  not  punish  unfounded  calumnies  of  the  magistrates  of  the  general 
government?  Why  is  the  state  magistrate  protected  by  the  common  law? 
Because  he  is  a  public  functionary „ and  calumnies  of  him  injure  the  public. 
Was  not  a  magistrate  of  the  general  government  also  a  public  functionary  ? 
Would  not  calumnies  against  him  also  injure  the  public?  And  if  the 
functionary  of  the  part  be  protected  by  law,  how  shall  it  be  said  that  the 
functionary  of  the  whole  is  left  unprotected?  Surely  reason  proclaims, 
that  in  proportion  to  the  magnitude  of  the  trust  reposed  in  the  functionary, 
would  be  the  mischief  arising  from  false,  scandalous,  and  malicious  repre- 
sentations of  his  conduct.  The  most  unfounded  calumnies  against  the 
governor  of  a  particular  state  could  only  rouse  the  discontent,  or  excite 
the  opposition  of  that  state.  But  unfounded  calumnies  against  the  Presi- 
dent of  the  United  States,  may  paralyse,  convulse,  and  destroy  the  Union. 
The  reason  of  the  common  law  applies,  therefore,  more  powerfully  to  the 
magistrate  of  the  general  government  than  to  the  magistrate  of  the  state 
'government.  But  this  is  the  general  feature  of  that  law,  and  of  reason, 
that  the  person  being  a  magistrate  of  whatever  grade  or  description,  and 
being  vested  with  the  authority  of  the  laws,  ought  to  be  protected. 

That  the  principles  of  the  common  law  apply  to  the  general  government, 
is  obvious  from  the  second  section  of  the  third  article  of  the  Constitution, 
which  declares,  that  "  the  judicial  powers  shall  extend  to  all  cases  in  law 


DEBATE  ON  VIRGINIA  RESOLUTIONS.  135 

and  equity,  arising  under  this  Constitution,  the  laws  of  the  United  States, 
and  treaties  made,  or  which  shall  be  made  under  their  authority,"  and  "to 
controversies  to  which  the  United  States  shall  be  party."  The  judiciary, 
in  cases  arising  under  the  laws  of  the  United  States,  will  be  regulated  by 
those  laws :  and  in  cases  arising  under  treaties,  by  those  treaties  and  the 
law  of  nations ;  but  what  cases  can  arise  under  the  Constitution,  as  dis- 
tinguished from  cases  arising  under  the  laws  of  the  United  States  and 
under  treaties,  except  cases  to  be  decided  by  the  rules  and  principles  of 
the  common  law?  And  these  in  "controversies  to  which  the  United  States 
shall  be  party,"  will,  unless  altered  or  modified  by  law,  operate  in  their 
full  extent. 

This  is  not  the  only  instance  in  which  the  common  law  is  recognised 
in  the  Constitution  ;  for  the  ninth  amendment  is  in  these  words:  "  in  suits 
at  common  law,  where  the  value  in  controversy  shall  exceed  twenty  dol- 
lars, the  right  of  trial  by  jury  shall  be  preserved;  and  no  fact  tried  by  a 
jury  shall  be  otherwise  re-exarnined  in  any  court  of  the  United  States, 
than  according  to  the  rules  of  the  common  law"  When  in  the  re-exami- 
nation of  facts  tried  by  a  jury,  the  courts  of  the  United  States  are  expressly 
prohibited  from  observing  any  other  than  the  rules  of  the  common  law,  the 
Constitution  itself  declares,  that  the  common  law  applies  to  those  courts ; 
and  if  it  applies  in  one  instance,  it  must  apply  in  all  others  coming  within 
their  sphere,  unless  where  it  is  altered  by  act  of  Congress. 

The  common  law  has  been  thus  shown  to  apply  to  the  government  of  the 
United  States  as  well  as  to  the  governments  of  the  particular  states  and  to 
particular  individuals.  One  rule  of  the  common  law  is,  "that  he  who 
writes,  utters  or  publishes  a  false,  scandalous,  and  malicious  libel  against 
a  magistrate  or  the  government,  shall  be  punished  by  fine  and  imprison- 
ment." The  writer,  utterer  or  publisher,  therefore,  of  a  false,  scandalous 
and  malicious  libel  against  the  government  of  the  United  States,  or  any 
magistrate  thereof,  is  at  common  law,  punishable  by  fine  and  imprison- 
ment. 

The  objection  to  the  punishment  of  libels,  that  truth  is  the  sufficient 
antagonist  of  error,  and  needs  no  assistance,  Mr.  Taylor  said,  was  not 
correct:  that  falsehood  was  light  and  volatile;  she  flew  on  the  wings  of 
the  wind,  she  spread  her  mischiefs  with  inconceivable  velocity :  that  truth 
was  the  child  of  experience,  and  the  companion  of  time;  she  scarcely  ever 
outstripped,  and  rarely  kept  pace  with  her  companion.  What  mischief  in 
all  ages  and  in  all  countries  have  been  occasioned  to  individuals,  and  to 
the  public,  by  malignant  falsehoods,  before  truth  could  arrive  to  detect 
and  protect  them.  How  would  these  mischiefs  be  aggravated,  if  they 
should  remain  unpunished  by  the  laws?  The  fairest  reputation,  when 
frequently  assailed,  must  be  diminished  in  the  public  esteem.  Each  scan- 
dalous report  finds  some  believers;  and  at  length  the  most  charitable  will 
be  disposed  to  think  that  such  repeated  charges  could  not  be  made  without 
some  foundation.  They  will  increase  in  proportion  to  the  talents  and(the 
station  of  the  injured  individual,  and  unless  they  be  punished  by  the  laws, 
the  most  splendid  abilities,  and  unsullied  virtues,  must  cease  to  be  useful, 
and  sink  into  disgrace. 

Mr.  Taylor  said,  from  what  had  been  said,  it  would  appear  that  the 


136  DEBATE  ON  VIRGINIA  RESOLUTIONS. 

right  to  punish  libels  against  governments,  or  their  officers,  is  founded  in  the 
principles  of  nature,  of  reason,  and  of  common  law.  The  act  of  Congress 
on  this  subject,  said  he,  punishes  nothing  before  unpunishable :  it  creates 
no  new  crime  :  it  inflicts  no  new  punishment :  but  on  the  contrary,  it  mol- 
lifies and  alleviates  the  rigours  of  the  common  law;  for  at  common  law, 
the  amount  of  the  fine,  and  the  time  of  imprisonment,  are  unlimited,  and 
regulated  only  by  the  discretion  of  the  court  trying  the  offence:  by  the  act 
in  question,  the  fine  is  limited  at  the  utmost  to  two  thousand  dollars,  and 
the  imprisonment  to  two  years. 

But  the  opposers  of  this  law  assert,  that  however  the  principles  of  the 
common  law  may  apply  to  the  government  of  the  United  States,  in  ordi- 
nary cases,  and  whatever  might  have  been  their  original  power  to  punish 
libels,  this  power  is  now  taken  away  by  the  third  amendment  to  the  Con- 
stitution. 

This  amendment  is  in  the  following  words :  "  Congress  shall  make  no 
law  respecting  an  establishment  of  religion,  or  prohibiting  the  free  exercise 
thereof,  or  abridging  the  freedom  of  speech,  or  of  the  press." 

The  difference  of  the  terms  used  in  this  amendment,  Mr.  Taylor 
said,  was  remarkable.  "  Congress  shall  make  no  law  respecting  an 
establishment  of  religion,  or  prohibiting  the  free  exercise  thereof."  Con- 
sequently, they  dare  not  touch  the  subject  of  religion  at  all.  But  further, 
they  "  shall  make  no  law  abridging  the  freedom  of  speech,  or  of  the 
press;"  not  "respecting  the  freedom  of  speech,  or  of  the  press."  .  When 
religion  is  concerned,  Congress  shall  make  no  law  respecting  the  subject : 
when  the  freedom  of  the  press  is  concerned,  Congress  shall  make  no  law 
abridging  its  freedom ;  but  they  may  make  any  laws  on  the  subject  which 
do  not  abridge  its  freedom.  And  in  fact,  the  eighth  section  of  the  first 
article  of  the  Constitution  authorizes  them  in  express  terms  "  to  promote 
the  progress  of  science  and  useful  arts,  by  securing  for  limited  times,  to 
authors  and  inventors,  the  exclusive  right  to  their  respective  writings  and 
discoveries."  Now  if  Congress  could  not  make  any  laws  respecting  the 
freedom  of  the  press,  they  could  not  secure  for  limited  times  to  authors 
their  respective  writings,  by  prohibiting  those  writings  from  being  published 
and  vended,  except  by  those  whom  the  authors  should  expressly  permit. 
They  may  consequently  make  laws  respecting  the  press,  provided  they  do 
not  abridge  its  freedom.  To  abridge  the  freedom  of  the  press,  Mr.  Taylor 
said,  was  to  impose  upon  it  restraints  or  prohibitions  which  it  did  not  ex- 
perience before ;  or  to  increase  the  penalties  attached  to  former  offences 
accruing  from  its  licentiousness.  If  then  the  sedition-law  does  impose 
upon  the  press  restraints  or  prohibitions  which  it  did  not  experience  before 
that  act  was  passed,  or  if  it  increases  the  penalties  attached  to  former 
offences  arising  from  its  licentiousness,  it  was  conceded  to  be  unconstitu- 
tional. 

But  it  had  been  demonstrated,  he  said,  that  the  common  law  embraces 
and  attaches  itself  to  the  constitution  and  government  of  the  United  States  ; 
and  that  it  punishes  with  indefinite  fine  and  imprisonment  the  writing, 
uttering,  or  printing  false,  scandalous,  and  malicious  libels.  When  the  act 
in  question,  then,  only  punishes  the  same  false,  scandalous,  and  malicious 
writing  by  fine  and  imprisonment  to  a  definite  amount,  and  for  a  definite 


DEBATE  ON  VIRGINIA  RESOLUTIONS.  137 

period,  it  does  not  impose  upon  the  press  restraints  or  prohibitions  which 
it  did  not  experience  before,  nor  does  it  increase  former  penalties;  it  there- 
fore does  not  abridge  its  freedom,  and  is  consequently  constitutional.  To 
suppose  that  because  Congress  are  prohibited  from  making  laws  abridging 
the  freedom  of  the  press,  they  cannot  punish  the  vile  slanders  and  infamous 
calumnies  which  from  time  to  time  issue  from  it,  against  the  government, 
Mr.  Taylor  said,  was  to  suppose  that  the  people  of  America  had  given  a 
solemn  and  constitutional  sanction  to  vice  and  immorality;  that  they  had 
completely  privileged  the  infamous  offence  of  lying ;  and  that  every  indi- 
vidual had  consented,  in  case  of  his  being  employed  by  the  United  States, 
to  release  the  society  from  the  protection  and  vindication  of  his  natural 
right  to  reputation. 

The  persons  who  framed  the  amendments  to  the  Constitution  of  the 
United  States,  were  certainly  men  of  distinguished  abilities  and  information. 
Among  them  was  a  great  proportion  of  lawyers,  whose  peculiar  study  had 
been  the  common  law.  Perhaps  every  one  of  them  had  read  and  maturely 
considered  Blackstorie's  Commentaries ;  these  would  inform  him,  that  in- 
England,  the  terms  "freedom  of  the  press,"  had  an  appropriate  significa- 
tion, to  wit:  exemption  from  previous  restraint  on  all  publications  what- 
ever, with  liability,  however,  on  the  part  of  the  publisher,  to  individuals  or 
the  public,  for  slanders  affecting  private  reputation  or  the  public  peace. 
Certainly  every  one  of  them  was  acquainted  with  the  laws  of  his  own 
state,  where  the  terms  "  freedom  of  the  press,"  had  precisely  the  same 
meaning  as  in  England.  When,  then,  in  the  amendments  to  the  Consti- 
tution they  speak  of  "  the  freedom  of  the  press,"  must  it  not  be  presumed 
they  intended  to  convey  that  appropriate  idea,  annexed  to  the  term  both  in 
England  and  in  their  native  states?  And  a  reference  to  Blackstone  will 
clearly  point  out,  both  the  emancipation  of  the  press  in  that  country  from 
its  former  shackles,  and  the  true  import  and  meaning  there  and  here,  of 
the  term  "  freedom  of  the  press."  "  The  art  of  printing,"  says  that  valu- 
able writer,  "soon  after  its  introduction,  was  looked  upon  (as  well  in  Eng- 
land as  in  other  countries)  as  merely  a  matter  of  state,  and  subject  to  the 
coercion  of  the  crown.  It  was,  therefore,  regulated  with  us  by  the  king's 
proclamations,  prohibitions,  charters  of  privilege  and  of  license,  and  finally, 
by  the  decrees  of  the  Court  of  Star  Chamber,  which  limited  the  number  of 
printers,  and  of  presses  which  each  should  employ,  and  prohibited  new 
publications,  unless  previously  approved  by  proper  licensers.  On  the 
demolition  of  this  odious  jurisdiction,  in  1641,  the  long  parliament  of 
Charles  I.  after  their  rupture  with  that  prince,  assumed  the  same  powers 
as  the  Star  Chamber  exercised  with  respect  to  the  licensing  of  books,  and 
in  1643,  1647,  1649  and  1652,  issued  their  ordinances  for  that  purpose, 
founded  principally  on  the  Star  Chamber  decree  of  1637.  In  1662,  was 
passed  the  statute  13  and  14  Car.  II.  c.  33,  which  (with  some  few  altera- 
tions) was  copied  from  the  parliamentary  ordinances.  This  act  expired 
1679,  but  was  revived  by  statute  1  Jas.  II.  c.  17,  and  continued  till  1692. 
It  was  then  continued  for  two  years  longer,  by  statute  4  W.  &  M.  c.  24; 
but  though  frequent  attempts  were  made  by  the  government  to  revive  it  in 
the  subsequent  part  of  that  reign,  yet  the  parliament  resisted  it  so  strongly, 
that  it  finally  expired,  and  the  press  became  properly  free  in  1694,  and 


138  DEBATE  ON  VIRGINIA  RESOLUTIONS. 

has  ever  since  so  continued."  The  same  writer  thus  elegantly  defines  the 
liberty  of  the  press.  "The  liberty  of  the  press  is,  indeed,  essential  to  the 
nature  of  a  free  state ;  but  this  consists  in  laying  no  previous  restraints 
upon  publications,  and  not  in  freedom  from  censure  for  criminal  matter, 
when  published.  Every  freeman  has  an  undoubted  right  to  lay  what 
sentiments  he  pleases  before  the  public :  to  forbid  this,  is  to  destroy  the 
freedom  of  the  press  ;  but,  if  he  publishes  what  is  improper,  mischievous 
or  illegal,  he  must  take  the  consequence  of  his  own  temerity.  To  subject 
the  press  to  the  restrictive  power  of  a  licenser,  as  was  formerly  done,  both 
before  and  since  the  revolution,  is  to  subject  all  freedom  of  sentiment  to 
the  prejudices  of  one  man,  and  make  him  the  arbitrary  and  infallible  judge 
of  all  controverted  points  in  learning,  religion,  and  government.  But,  to 
punish  (as  the  law  does  at  present)  any  dangerous  or  offensive  writings, 
which,  when  published,  shall,  on  a  fair  and  impartial  trial,  be  adjudged  of 
a  pernicious  tendency,  is  necessary  for  the  preservation  of  peace  and  good 
order,  of  government  and  religion,  the  only  solid  foundations  of  civil  liberty. 
Thus  the  will  of  individuals  is  still  left  free ;  the  abuse  only  of  that  free 
will,  is  the  object  of  legal  punishment.  Neither  is  any  restraint  hereby 
laid  upon  freedom  of  thought  or  inquiry ;  liberty  of  private  sentiment  is 
still  left;  the  disseminating  or  making  public  of  bad  sentiments,  destructive 
of  the  ends  of  society,  is  the  crime  which  society  corrects."  "A  man 
(says  a  fine  writer  on  this  subject)  may  be  allowed  to  keep  poisons  in  his 
closet,  but  not  publicly  to  vend  them  as  cordials.  And  to  this  we  may 
add,  that  the  only  plausible  argument  heretofore  used  for  the  restraining  the 
just  freedom  of  the  press,  'that  it  was  necessary  to  prevent  the  daily  abuse 
of  it,'  will  entirely  lose  its  force,  when  it  is  shown  (by  a  seasonable  exer- 
tion of  the  laws)  that  the  press  cannot  be  abused  to  any  bad  purpose, 
without  incurring  a  suitable  punishment ;  whereas  it  never  can  be  used  to 
any  good  one,  when  under  the  control  of  an  inspector.  So  true  will  it  be 
found,  that  to  censure  the  licentiousness,  is  to  maintain  the  liberty  of  the 
press." 

In  England,  said  Mr.  Taylor^  the  laying  no  previous  restraints  upon 
publications,  is  freedom  of  the  press.  In  every  one  of  the  United  States 
the  laying  no  previous  restraints  upon  publications  hath  always  been,  and 
still  is  deemed  the  freedom  of  the  press.  In  England,  notwithstanding  the 
freedom  of  the  press,  the  publication  of  false,  scandalous,  and  malicious 
writings  is  punishable  by  fine  and  imprisonment.  In  every  one  of  the 
United  States,  notwithstanding  the  freedom  of  the  press,  the  publication  of 
false,  scandalous,  and  malicious  writings  is  punishable  in  the  same  man- 
ner.  If  the  freedom  of  the  press  be  not  therefore  abridged  in  the  govern- 
ment of  any  particular  state,  by  the  punishment  of  false,  scandalous,  and 
malicious  writings,  how  could  it  be  said  to  be  abridged  when  the  same 
punishment  is  inflicted  on  the  same  offence  by  the  government  of  the  whole 
people? 

If  it  should  be  thought  that  this  point  required  further  elucidation,  let 
us,  said  Mr.  Taylor ,  look  for  it  in  the  Constitution  of  the  state  of  Virginia. 
It  had  been  said  that  the  general  government,  being  constituted  for  particu- 
lar purposes,  possesses  only  such  powers  as  are  granted :  and  this  was 
conceded  to  be  true.  It  had  been  also  said  that  the  state  governments, 
being  constituted  for  the  general  regulation  of  the  people  in  each  state, 


DEBATE  ON  VIRGINIA  RESOLUTIONS.  139 

possess  all  powers  which  the  people  have  not  expressly  retained  to  them- 
selves;  and  this,  for  the  sake  of  argument,  shall  also  be  granted.  Yet  it 
would  not  be  disputed  that  the  powers  retained  by  the  people  to  themselves 
in  their  state  Constitution,  are  as  sacred  and  inviolable  as  those  retained 
by  the  people  to  themselves  in  the  Constitution  of  the  United  States.  Now 
the  people  of  Virginia,  in  their  state  constitution,  appear  to  have  been  as 
jealous  of  this  freedom  of  the  press,  as  were  the  people  of  the  United  States 
in  the  formation  of  the  Federal  Constitution.  For  if  the  Constitution  of 
the  United  States  declares,  that  Congress  shall  "  make  no  law  abridging 
the  freedom  of  speech  or  of  the  press,"  the  Constitution  of  Virginia,  in  the 
twelfth  article  of  the  bill  of  rights,  declares,  "  that  the  freedom  of  the  press 
is  one  of  the  great  bulwarks  of  liberty,  and  can  never  be  restrained  but 
by  despotic  governments."  The  legislature  of  Virginia  therefore,  Mr. 
Taylor  said,  could  no  more  pass  a  law  restraining  the  freedom  of  the 
press,  than  Congress  could  pass  a  \awabridging  the  freedom  of  the  press. 
The  liberty  of  the  press  could  not  be  restrained  without  being  abridged. 
Yet  it  had  never  been  doubted  that  false,  scandalous,  and  malicious  wri- 
tings are  punishable  in  Virginia.  In  the  year  1792  the  legislature  of  this 
state  passed  a  law  "  against  divulgers  of  false  news,"  and  no  one  suggested 
that  the  liberty  of  the  press  was  thereby  restrained.  In  the  same  session 
another  act  was  passed,  declaring  "  that  any  person  who  shall,  by  writing 
or  advised  speaking,  endeavour  to  instigate  the  people  of  this  common- 
wealth to  erect  or  establish  any  government  separate  from,  or  independent 
of,  the  government  of  Virginia,  within  the  limits  thereof,  without  the  as- 
sent of  the  legislature  of  this  commonwealth  for  that  purpose  first  obtained, 
shall  be  adjudged  guilty  of  a  high  crime  and  misdemeanour,  and  on  con- 
viction, shall  be  subject  to  such  pains  and  penalties,  not  extending  to  life 
or  member,  as  the  Court  before  whom  the  conviction  shall  be,  shall  ad- 
judge." Neither  was  this  law  deemed  unconstitutional.  Now  if  the 
legislature  of  Virginia  could  pass  laws  punishing  divulgers  of  false  news, 
and  writers  advising  the  people  to  particular  detrimental  acts,  without  re- 
straining the  freedom  of  the  press,  could  not  the  legislature  of  the  Union 
punish  false,  scandalous,  and  malicious  writings  tending  to  destroy  the 
government,  or  to  bring  it  into  hatred  and  contempt,  without  abridging 
the  freedom  of  the  press  7  To  say  that  they  could  not,  was  to  declare 
that  punishing  the  licentiousness,  is  abridging  the  freedom,  of  the  press; 
and  that  licentiousness  and  freedom  are  synonymous  terms. 

Every  man,  continued  Mr.  Taylor,  has  a  right  to  freedom  of  action; 
but  no  one  supposed  that  this  bestowed  upon  him  the  right  to  assault  an- 
other on  the  highway.  Every  one  has  a  right  to  the  freedom  of  the  press ; 
but  should  he  use  it  so  as  to  assault  the  happiness  of  an  individual  or  the 
repose  of  society,  without  being  liable  to  punishment  for  the  mischief  he 
had  occasioned  ? 

It  had  been  said  that  false,  scandalous,  and  malicious  libels  against  the 
government  of  the  United  States,  or  any  officer  thereof,  are  punishable  in 
the  courts  of  each  state  respectively  ;  but  this  was  believed  to  be  incorrect. 
Libels  against  state  magistrates,  or  such  officers  of  the  general  government 
as  reside  in  Virginia,  are  punishable  in  our  state  courts,  because  the  in- 
jured persons  reside  within  the  limits  of  the  state,  contribute  to  its  support, 


140  DEBATE  ON  VIRGINIA  RESOLUTIONS. 

and  are  entitled  to  protection  from  it :  but  libels  against  the  magistrates  of 
a  foreign  nation,  or  of  a  sister  state,  or  of  the  general  government, 
residing  out  of  this  state,  are  not  punishable  in  our  courts,  because  the 
injured  individuals  in  these  cases  are  not  bound  by  our  state  laws,  do  not 
sustain  the  burdens,  or  contribute  to  the  support  of  the  commonwealth, 
and  are  consequently  not  entitled  to  its  protection.  But  it  would  not  be 
denied,  that  an  infamous  slander  of  the  President  of  the  United  States, 
tending  to  produce  insurrection,  was  equally  mischievous,  if  published  by 
a  citizen  of  Virginia,  as  if  published  by  a  citizen  of  Pennsylvania.  The 
courts  of  the  United  States,  therefore,  must  take  cognizance  of  the  case, 
or  the  offence  would  remain  unpunished.  Every  public  incendiary  would, 
by  palpable  misrepresentations  and  abominable  falsehoods,  continually 
agitate  and  convulse  the  minds  of  the  people.  That  affection  towards 
the  government  which  alone  supports  it,  would  shortly  be  withdrawn,  and 
would  speedily  fall,  to  rise  no  more. 

On  the  sedition-law,  Mr.  Taylor  said,  he  would  make  no  further  re- 
marks, but  would  proceed  to  other  parts  of  the  resolutions. 

The  seventh  resolution  is  in  the  words  following :  "  That  the  good  peo- 
ple of  this  commonwealth  having  ever  felt  and  continuing  to  feel  the  most 
sincere  affection  to  their  brethren  of  the  other  states,  the  truest  anxiety  for 
establishing  and  perpetuating  the  union  of  all,  and  the  most  scrupulous 
fidelity  to  that  Constitution  which  is  the  pledge  of  mutual  friendship  and 
the  instrument  of  mutual  happiness,  the  General  Assembly  doth  solemnly 
appeal  to  the  like  dispositions  of  the  other  states,  in  confidence  that  they 
will  concur  with  this  commonwealth  in  declaring,  as  it  does  hereby  de- 
clare, that  the  acts  aforesaid  are  unconstitutional  and  not  law,  but  utterly 
null,  void,  and  of  no  effect,  and  that  the  necessary  and  proper  measures 
will  be  taken  by  each  for  co-operating  with  this  state,  in  maintaining  un- 
impaired the  authorities,  rights,  and  liberties  reserved  to  the  states  respec- 
tively, or  to  the- people." 

On  this  resolution,  Mr.  Taylor  said,  two  remarks  would  be  submitted. 
The  legislature  of  one  state  in  the  Union  declares  two  acts  passed  by  a 
majority  of  the  representatives  of  the  whole  American  people,  to  be  un- 
constitutional and  not  law,  but  utterly  null,  void,  and  of  no  effect.  They 
declare  this,  not  as  an  opinion,  but  as  a  certain  and  incontrovertible  fact; 
in  consequence  of  which  the  people  of  the  state  owe  no  submission  to  the 
laws.  Have,  continued  he,  the  representatives  of  a  part,  a  power  thus  to 
control  and  to  defeat  the  acts  of  the  whole  1  In  the  Congress  of  the  Uni- 
ted States,  the  people  of  each  state  are  fairly  and  equally  represented  in 
proportion  to  the  population  of  that  state.  If,  after  a  majority  in  that 
Congress  have  decided  that  certain  laws  are  constitutional  and  expedient, 
the  legislature  of  Virginia  hath  a  right  to  annul  those  laws  by  declaring 
them  to  be  unconstitutional,  the  old  republican  maxim  that  the  majority 
must  govern  was  exploded,  and  the  Union  would  be  dissolved.  If  the 
state  of  Virginia  could  repeal  and  annul  the  alien  and  sedition-laws,  she 
could  repeal  and  annul  any  other  acts  of  Congress ;  and  if  she  hath  the 
right,  every  other  state  must  possess  it  likewise.  ' 

If  any  act  passed  by  Congress  be  unconstitutional,  the  judges  of  the 
federal  court,  who  are  unbiassed  by  party,  and  unwarped  by  prejudice, 
and  who  are  selected  for  their  superior  talents  and  integrity,  afforded  a 


DEBATE  ON  VIRGINIA  RESOLUTIONS.  141 

constitutional  check  upon  the  legislature.  The  people  themselves  are  an- 
other most  powerful  check ;  for  they  will  know  the  vote  of  their  represen- 
tatives, and  if  they  deem  the  law  for  which  they  voted  to  be  unconstitu- 
tional, they  will  order  them  to  depart  at  the  ensuing  election,  and  replace 
them  with  others  more  wise  and  more  virtuous.  Here  were  two  peaceable 
and  happy  modes  of  correcting  the  mischief:  whereas,  for  one  or  more 
jealous  state  legislatures  to  endeavour  to  repel  or  control  the  acts  of  Con- 
gress by  their  sovereign  power,  was  at  once  to  introduce  disunion  and 
civil  war.  The  government  of  the  Union,  which  might  have  yielded  to 
fair  reason  and  argument,  will  never  give  way  to  the  threats  or  force  of 
these  rival  sovereignties.  If  they  do,  the  powers  and  energies  of  the 
Federal  Government  would  be  from  that  moment  destroyed.  They  will 
determine  to  try  the  experiment  whether  the  Union  shall  govern  a  few 
states,  or  a  few  states  shall  rule  the  Union.  The  certain  consequence  will 
be  a  resort  to  arms,  civil  war,  and  carnage,  and  a  probable  cfismemberment 
of  the  Union. 

Of  such  consequences,  in  such  an  event,  the  framers  of  the  Constitution 
were  aware.  They,  therefore,  wisely  in  the  tenth  section  of  the  first  ar- 
ticle declared  that  "  no  state  shall,  without  the  consent  of  the  Congress, 
enter  into  any  agreement  or  compact  with  another  state  or  with  a  foreign 
power."  The  resolution  last  cited,  however,  invited  the  other  states  to 
"  take  the  necessary  and  proper  measures  for  co-operating  with  this  state 
in  maintaining  unimpaired  the  authorities,  rights,  and  liberties  reserved  to 
the  states  respectively,  or  to  the  people."  Could  other  states  co-operate 
with  this  for  these  purposes,  unless  by  virtue  of  some  previous  agreement 
or  compact  1  To  co-operate,  was  to  act  in  concert.  Must  not  some 
agreement  or  compact  among  the  states  precede  their  acting  in  concert? 
It  must  in  the  nature  of  things.  Does  not  the  Constitution  forbid  this 
agreement  or  compact  in  positive  and  express  terms?  Were  we  not,  then, 
inviting  our  sister  states  to  a  deliberate  and  palpable  breach  of  the  Consti- 
tution ;  and  this  at  the  moment  when  we  were  so  liberally  reviling  Con- 
gress for  an  imputed  breach  of  the  same  instrument'?  Did  their  example 
authorize  us  to  violate  what  we  had  solemnly  sworn  to  support  and  pre- 
serve ?  Or  did  an  act  which  was  not  to  be  tolerated  in  the  wicked  Con- 
gress, become  venial  or  laudable  when  committed  by  the  saints  composing 
this  Assembly  ? 

These  resolutions,  continued  Mr.  Taylor,  must  have  some  ultimate 
object ;  and  it  had  been  demanded  what  that  object  was  ?  The  gentleman 
from  Caroline  had  answered,  that  it  was  ultimately  to  induce  the  states  to 
call  another  general  convention  for  the  amendment  of  the  Constitution. 
How  unfortunate  and  ruinous  such  an  experiment  would  be,  the  reflection 
of  a  few  moments  must  convince  us. 

When  the  circumstances  and  the  time  when  the  convention  assembled 
which  formed  our  present  Constitution,  and  the  importance  and  difficulty 
of  the  task  which  they  undertook  and  executed,  were  considered,  we  had 
ample  cause  to  return  our  fervent  thanks  to  the  Almighty  for  the  issue  of 
their  labours.  At  that  time  the  weakness  and  inefficacy  of  the  articles  of 
confederation  was  perceived  and  acknowledged  by  us  all ;  our  contracts 
were  undischarged ;  our  credit  was  destroyed ;  and  our  character  as  a 


142  DEBATE  ON  VIRGINIA  RESOLUTIONS. 

nation  was  contemptible  both  at  home  and  abroad.  All  America  united 
in  the  sentiment  that  change  was  essential:  all  America  deputed  members 
to  the  convention  which  introduced  that  change.  Foreign  nations  despised 
us  too  much  to  interfere  in  the  deliberations  of  that  body,  or  of  the  state 
conventions  which  afterwards  adopted  the  instrument.  Even  under  these 
circumstances,  the  harmony  with  which  the  plan  was  recommended,  and 
the  unanimity  with  which  it  was  adopted,  were  subjects  of  amazement  and 
wonder. 

But  what  would  be  the  consequence  and  effect  of  a  convention  sum- 
moned to  amend  the  Constitution  at  the  present  moment  ?  Now,  said  he, 
party-spirit  unfortunately  flames  and  rages.  Some  think  the  Constitution 
as  perfect  as  it  could  be  made,  while  others  consider  it  as  the  harbinger  of 
monarchy,  and  others  again,  supposed  that  the  powers  of  government  re- 
quire an  increase  of  energy  and  power.  A  spirit  of  mutual  concession 
could  no  longer  be  expected.  The  delegates  from  the  northern  and 
southern  parts  of  the  Union  would  behold  each  other  with  jealousy  and  sus- 
picion. They  would  never  unite  in  the  same  project.  They  might  agree 
indeed,  in  pulling  down  the  present  building,  but  they  would  never  agree  in 
erecting  another. 

This  too,  is  a  period  when  the  whole  European  world  is  convulsed  and 
in  arms ;  our  rising  importance  attracts  their  attention  and  excites  their 
fears.  Even  in  the  present  state  of  things,  their  ministers  and  agents 
were  continually  intriguing  among  our  citizens.  Would  they  remain  idle 
and  unemployed  while  the  convention  was  deliberating?  Would  they  not 
afford  fuel  to  the  flame  of  parly,  and  prepare  the  public  mind  to  reject 
every  scheme  which  might  be  proposed  ?  Was  it  not  reasonable  to  be  ex- 
pected that  the  consequence  of  their  exertions,  and  our  own  ferments, 
would  be  confusion,  anarchy,  civil  war,  and  disunion?  Enjoying,  then, 
as  we  do,  every  happiness  to  which  reason  can  aspire,  shall  we,  said  he, 
wantonly  attempt  a  change  by  which  little  could  be  obtained,  and  every- 
thing might  be  sacrificed. 

In  Virginia,  Mr.  Taylor  said,  the  general  sentiment  was  that  the  govern- 
ment of  the  United  States  verges  towards,  and  will  ultimately  settle  in,  a 
monarchy.  But  the  measures  of  that  government  are  supported  by  a 
majority  of  the  House,  of  Representatives,  and  by  a  still  greater  majority 
of  the  Senate.  From  this  obvious  proof  of  the  prevailing  sentiment 
throughout  the  Union,  was  it  to  be  expected  that  another  government 
would  be  framed  vesting  smaller  or  fewer  powers  in  the  executive,  than  he 
at  present  exercises?  Would  not  our  object,  on  the  contrary,  be  defeated, 
since  the  general  convention  would  probably  enlarge  instead  of  diminish 
the  powers  of  the  national  government?  No  other  consequence,  there- 
fore, could  at  the  present  time,  and  under  existing  circumstances,  follow 
such  an  experiment,  but  increase  of  dissatisfaction  and  disgust,  and  a 
more  ardent  disposition  to  dissever  the  bonds  of  union  which  now  connect 
all  America. 

In  such  a  convention,  in  vain  should  we  reckon  on  the  superior  impor- 
tance, power,  and  influence  of  Virginia.  A  majority  of  states  would 
never  agree  to  summon  another  convention  unless  it  should  be  previously 
agreed  and  declared  that  the  votes  shall  be  taken  as  in  the  former  conven- 


DEBATE  ON  VIRGINIA  RESOLUTIONS.  143 

tion,  by  states.  In  such  a  convention,  where  the  influence  of  Delaware  or 
Rhode  Island  would  be  as  great,  and  their  respective  votes  would  weigh  as 
much  as  those  of  Virginia  and  Pennsylvania,  what  would  be  our  chance 
of  carrying  our  particular  objects  into  effect.  The  smaller  states  already 
behold  us  with  jealousy  and  apprehension.  Each  representative  would 
come  prepared  to  watch,  to  oppose  and  circumvent  every  other.  'Northern 
and  southern,  eastern  and  western  parties  and  interests  would  immediately 
appear;  and  the  convention,  after  a  restless  and  turbulent  session,  which 
would  increase  instead  of  diminish  the  rage  of  faction  among  their  con- 
stituents, would  rise  in  confusion.  The  sound  of  peace  would  be  no  longer 
heard  ;  the  sentiment  of  union  would  no  longer  continue,  but  the  sword 
would  be  drawn,  the  union  for  ever  dismembered,  and  the  bloody  history  of 
Europe  would  be  retraced  in  the  melancholy  annals  of  divided  and  hostile 
America. 

How  sad  and  gloomy  a  contrast  would  such  a  state  of  things  afford  to 
the  present  flattering  and  happy  aspect  of  our  affairs.  At  this  day',  said 
Mr.  Taylor,  America,  united  under  one  government,  experiences  an  in- 
crease of  wealth  and  population  unknown  to  any  other  country.  Mild 
and  equal  laws,  industrious  and  enterprising  citizens,  peace  among  our- 
selves and  respect  from  foreign  nations,  render  us  the  envy  of  every  other 
part  of  the  globe.  Mr.  Taylor  then  concluded  with  the  following  observa- 
tion :  May  HE  who  rules  the  hearts  of  men,  still  dispose  us  to  yield  obe- 
dience to  the  constitutional  acts  of  the  majority ;  may  He  avert  the  mis- 
chiefs which  these  resolutions  are  calculated  to  produce;  may  He  increase 
the  love  of  union  among  our  citizens ;  may  no  precipitate  acts  of  the  Le- 
gislature of  Virginia  convulse  or  destroy  it ;  and  to  sum  up  all  in  one 
word,  may  it  be  perpetual ! 

Mr.  GILES  arose  next,  and  said,  as  he  had  but  lately  appeared  before  the 
committee,  he  would  not  have  obtruded  any  observations  upon  it,  had  not 
some  remarks  which  had  fallen  from  gentlemen  made  some  impression 
upon  him.  Therefore,  though  unprepared,  he  would  make  a  few  obser- 
vations. He  then  observed,  that  for  several  years  past  he  had  had  an 
opportunity  of  considering  the  systems  pursued  by  both  the  state  govern- 
ment and  General  Government.  Of  those  he  considered  the  system  of 
Virginia  the  best  and  mildest.  For  after  twenty  years'  operation,  little 
mischief  could  be  proved  to  have  proceeded  from  it;  but,  on  the  contrary, 
much  good  had  been  done  by  the  administration  of  it  in  that  time.  There 
had  been  no  complaint  that  he  had  heard  respecting  the  injury  of  person  or 
property ;  and  there  had  been  at  the  same  time  less  energy  in  it  than  in  any 
other  government  whatever.  The  injunctions  of  law  had  been  duly  obeyed, 
and  of  the  laws  of  the  United  States  particularly,  of  as  much  so  here  as  in 
any  other  state.  What  had  been  the  cause  of  this  1  Not  the  rigour,  but  the 
mildness  of  the  laws.  And  were  such  principle  always  to  be  attended  to, 
the  necessity  of  energy  in  the  executive  branch  would  never  exist.  Mr. 
Giles  then  asked  what  was  that  energy  ?  It  was  despotism.  Whence  had 
sprung  the  distinction  of  parties?  Not  while  Virginia  was  left  to  herself. 
He  then  proceeded  to  pass  a  high  eulogium  on  her  system,  which  had 
been  felt  by  him  in  private  life ;  'for  he  confessed  that  he  had  never  acted 


144  DEBATE  ON  VIRGINIA  RESOLUTIONS. 

in  a  public  character  in  this  body  before?  Whence  then  did  party-spirit 
arise  ?  It  had  been  since  that  new  doctrine  had  taken  place  of  strength- 
ening the  hands  of  the  executive  of  the  United  States,  to  give  it  an  energy. 
And  he  proceeded  to  show  of  what  kind  that  was. 

Since  4hat  period,  he  said,  efforts  to  resist  had  originated.     Mr.  Giles 
then   requested  the  committee   to  examine  the  powers  of  the  General 
Government,  and  observe  what  was  the  opinion  formed  of  them  at  its  com- 
mencement.    He  then  mentioned  certain  systems  which  had  been  esta- 
blished in  the  course  of  its  operation,  such  as  the  funding-system,  bank, 
&c.    These  systems  being  established,  it  would  be  thought  necessary  from 
time  to  time,  to  give  them  energy.    He  said,  there  was  a  kind  of  sophistry 
used  by  the  General  Government  in  assigning  that  for  the  means  which 
was  in  fact  the  end ;  and  stated  for  example  the  case  of  invasion  and 
insurrection.     The  sedition-law  had  been  called  the  means  for  preventing 
them ;  but  he  (Mr.  Giles)  declared  the  contrary  to  be  the  fact.    The  sedi- 
tion-law was  truly  the  end,  and  an  invasion  was  made  use  of  as  the  means 
to  introduce  it.     He  would  examine  the  Constitution,  he  said ;  and  there 
he  found  the  language  as  plain  as  the  English  language  could  be.     Still, 
however,  that  language,  plain  as  it  was,  was  avoided  by  calling  an  end  a 
means.     The  sedition-law,  then,  was  an  end  to  suppress  a  certain  party 
in  the  United  States.     But  it  had  been  predicted  by  gentlemen,  that  many 
mischievous  consequences  would  attend  the  adoption  of  the  plan  proposed 
by  the  resolutions  before  the  committee.  Mr.  Giles  contended,  however,  that 
if  such  consequences  did  take  place,  they  would  not  proceed  from  any  act 
of  this  Assembly,  but  from  these  acts  of  Congress  already  passed.    As  for 
himself,  he  wished  as  much  as  others' to  preserve  happiness.    His  efforts 
were  tending  to  that  end.    An  oath,  too,  had  been  spoken  of.    What  was  it  ? 
"  To  support  the  Constitution  of  the  United  States."     It  became  then  the 
duty  of  the  members  of  this  Assembly,  who  had  taken  such  an  oath,  to 
support  the  Constitution.     But  it  had  been  said,  that  on  this  occasion  a 
resort  must  be  made  to  the  judiciary  and  to  the  people.    Why  so  ?  said 
Mr.  Giles.     The  members  of  this  Assembly  have  taken  the  same  oath  to 
support  the  Constitution  as  the  judiciary  and  the  people.     It  became  then 
as  much  their  duty  to  support  it,  as  it  was  that  of  the  others.     He  then 
asked,  how  was  the  Constitution  to  be  supported ;  and  said,  that  it  was 
by  resisting  all  attacks  upon  it,  not  any  particular  acts  only.     But  the 
right  of  the  members  of  this  Assembly  to  speak  their  opinions  upon  the 
subject  was  questioned.    It  was  said,  that  they  must  inform  the  people  so : 
that  they  must  do  it,  that  the  judges  must  do  it,  and  that  they  their  repre- 
sentatives  wished  not  to  do  it  themselves.     Mr.  Giles  then  said,   that 
the  measures  of  our  present  government  tended  to  the  establishment  of 
monarchy,  limited  or  absolute.    It  had  been  said,  too,  that  tjie  people  only 
were  parties  to  'the  compact.     But  Mr.  Giles  asked  what  was  an  associa- 
tion of  people  ?    A  federal  1    No ;  it  was  a  social  compact.     How  then 
would  they  support  it  as  a  federal  compact,  if  it  were  only  a  social  com- 
pact ?     The  state  government  was  truly  of  the  latter  kind.     The  General 
Government  was  partly  of  each  kind.     The  objection  to  the  word  only 
then  was  correct,  and  before  he  concluded,  he  should  move  to  strike  it 
out.     But  he  acknowledged  that  they  were  then  acting  as  a  state.     The 


DEBATE  ON  VIRGINIA  RESOLUTIONS.  145 

gentleman  from  Westmoreland  had  delivered  his  opinion  respecting  the 
formation  of  the  government.  In  this  opinion,  Mr.  Giles  said,  the  gentle- 
man was  partly  correct,  and  partly  incorrect.  The  United  States  would 
perhaps  have  been  in  a  different  situation,  if  what  the  gentleman  had 
asserted  had  been  established.  He  then  proceeded  to  show  in  what  man- 
ner several  states  in  the  Union  appointed  their  electors  to  choose  a  Presi- 
dent, which  was  by  their  legislatures.  The  federal  idea,  then,  of  the  other 
side  was  not  correct.  And  if,  on  the  other  hand,  the  government  were  a 
social  compact,  he  pronounced  monarchy  to  be  near  at  hand,  the  symp- 
toms and  causes  of  which  he  particularly  pointed  out :  and  concluded  that 
the  state  legislatures  alone,  at  this  time  prevented  monarchy.  He  then 
said,  that  in  proportion  as  the  powers  of  the  government  were  extended, 
new  excuses  for  more  energy  would  arise.  And  what  was  energy  ?  A 
coercing  of  the  public  will.  He  then  observed  how  little  energy  was 
exerted  in  Virginia.  The  energy  of  the  laws  was  sufficient.  He  hoped, 
then,  that  the  right  of  the  committee  to  proceed  to  examine  the  subject 
would  not  be  denied.  The  gentleman  from  Prince  George  had  dwelt  upon 
the  present  happiness  of  the  people,  to  disprove  which  Mr.  Giles  called  to 
mind  the  rigorous  proceedings  of  the  government,  and  particularly  cited 
the  case  of  Matthew  Lyon,  whom,  notwithstanding  the  reports  propagated 
to  his  prejudice,  he  said  he  would  aver  to  be  a  man  of  much  worth.  The 
effects  of  these  laws  of  Congress  were  not  yet  sufficiently  known.  The 
medium  of  information  had  heretofore  been  contracted  and  imperfect. 
This  House  was  then  undertaking  to  make  them  more  known.  The  criti- 
cal situation  of  the  United  States,  too,  had  been  mentioned :  that  France 
and  England  both  had  a  view  towards  us ;  and  that  therefore  great  cau- 
tion should  be  used. 

He  then  proceeded  to  take  notice  of  the  measures  adopted  by  the  last 
Congress.  The  cause  for  them  held  out,  was  the  danger  to  be  apprehended 
from  a  certain  foreign  power.  This  cause  had  produced  the  laws  respect- 
ing the  navy,  the  army,  aliens,  and  the  sedition-law,  which  last  operated 
upon  citizens,  and  not  foreigners.  Those  gentlemen,  he  said,  who  never 
had  been  about  the  seat  of  government,  could  form  no  conception  of  the 
exertions  of  persons  who  were  continually  infusing  into  men's  minds,  the 
notions  of,  energy.  Mr.  Giles  then  read  an  answer  of  the  President  of 
the  United  States,  to  show  what  he  had  in  view  in  respect  to  that  foreign 
power  so  much  feared.  It  was  his  answer  to  the  address  of  the  people 
of  Bath.  He  read  it,  and  proceeded  to  comment  on  the  latter  part  of  it 
respecting  a  party  in  Virginia  to  be  crushed  into  dust  and  ashes.  He 
asked  what  was  that  party  ?  They  were  said  to  be  French  partisans. 
But  by  whom  were  they  so  called  ?  He  asked,  too,  who  were  the  fa- 
vourers of  the  resolutions  1  Not  Frenchmen,  but  good  citizens.  This 
was  the  party  then  to  be  crushed,  before  the  schemes  of  the  President 
could  be  effected.  He  said  that  he  could  produce  more  answers  of  the 
President,  avowing  the  same  principles  and  design,  as  that  already  cited, 
but  he  would  not  tire  the  committee  with  them.  He  declared  himself, 
however,  to  be  as  good  a  citizen  as  the  President.  Why  then  was  he  to 
be  crushed  into  dust  and  ashes  1  He  then  expressed  his  disapprobation 
of  the  measures  adopted  by  the  government  respecting  the  army  and 

10 


146  DEBATE  ON  VIRGINIA  RESOLUTIONS. 

navy.  He  asked,  of  what  characters  would  they  be  composed  1  Of  the 
idle  and  dissipated  part  of  the  community  ?  On  the  contrary,  who  were 
the  patriots  who  would  protect  their  country  1  This  very  party  mentioned 
by  the  President  would  repel  any  invasion.  It  was  true  they  had  no 
arms,  but  they  would  find  arms.  Mr.  Giles  then  said  that  he  approved 
of  the  argument  used  by  the  gentleman  from  Caroline,  respecting  the  vo- 
lunteers, but  wished  it  to  be  somewhat  more  extended.  He  thought  it  a 
much  more  serious  matter  than  any  other.  The  gentleman  from  Caro- 
line had  used  it  in  regard  to  the  President's  enlisting  aliens  merely.  But 
Mr.  Giles  said  he  would  ask,  further,  of  whom  those  companies  were  to 
be  composed  ?  Not  of  farmers  or  farmers'  sons,  but  chiefly  of  aliens.  He 
himself  believed  that  the  operation  of  the  last-mentioned  law  was  intended 
to  unite  both.  But  it  was  said  the  people  would  protect  the  Constitution  ; 
that  the  judges  would  protect  it.  He  then  observed,  that  opposition  to 
foreign  power  was  always  the  pretence  to  usurpation.  To  prove  that,  he 
instanced  the  case  of  Rome.  There,  he  said,  whenever  the  people  found 
themselves  oppressed,  and  solicited  redress,  they  were  told  by  their  rulers 
that  was  not  the  time;  that  the  commonwealth  was  in  danger;  that  the  Volsci 
were  at  their  gates.  Mr.  Giles  then  said,  that  by  the  measures  adopted 
by  the  last  Congress,  nothing  had  been  left  undone  to  carry  us  into 
monarchy.  But  union  was  now  said  to  be  necessary.  What  was  that 
union  for  ?  To  abridge  the  freedom  of  the  press.  Was  that  desirable  ? 
He  compared  this  to  the  case  of  robbers  forming  an  union  for  the  purpose 
of  robbing.  And  said,  that  good  was  the  object  of  the  union  of  the  states, 
and  not  mischief.  He  then  adverted  to  the  distinction  between  opinion 
and  fact.  He  said  Mr.  Jefferson's  was  a  good  distinction.  And  that  the 
assertion  of  false  fact  was  punishable  before  the  sedition-law  was  passed  ; 
but  the  assertion  of  false  opinion  was  not.  There  was  no  standard  to  as- 
certain that ;  there  was,  however,  in  respect  to  false  fact.  This  sedition- 
law,  then,  deprived  men  of  the  freedom  of  speech.  It  prescribed  the 
punishment  of  a  new  thing.  Opinion  heretofore,  had  ranged  at  large,  had 
always  prevailed.  Mr.  Giles  then  asked,  how  was  the  restriction  of 
opinion  introduced  in  France.  It  was  brought  about  in  Robespierre's 
reign  of  terrorism.  He  then  asked  how  this  party  mentioned  by  the  Pre- 
sident was  to  be  crushed?  Incarceration  would  not  be  sufficient.  In 
regard  to  the  restriction  of  opinion,  he  compared  our  situation  to  that  of 
France,  in  the  reign  of  Robespierre.  As  for  himself,  he  feared  not  the 
system,  but  thought  the  most  effectual  mode  was  now  pursued  to  introduce 
the  same  despotism  here  as  had  prevailed  in  France.  He  approved  the 
mode  adopted  by  the  resolutions,  in  making  a  declaration  to  conflict  with 
other  opinions.  He  then  referred  to  our  situation,  and  said  that  he  felt 
himself  as  much  interested  as  any  one  to  ward  off  war,  but  he  thought 
the  worst  of  all  things  was  ultimately  submission ;  and  that  a  constitu- 
tional violation  was  more  degrading  than  anything.  But  the  resolutions 
had  been  charged  with  containing  invective.  He  said  if  there  were  any, 
it  must  arise  from  simple  language,  expressing  simple  truths.  However, 
if  better  could  be  used  he  would  be  willing  to  agree  to  it.  But  he  doubted 
whether  should  even  the  Lord's  Prayer  be  introduced  before  them,  and 
undergo  a  criticism,  they  could  be  brought  to  agree  to  it.  It  had  been 


DEBATE  ON  VIRGINIA  RESOLUTIONS.  147 

said,  that  if  this  Assembly  critically  examined  the  measures  of  the  general 
government,  they  should  use  more  pleasant  terms.     But  Mr.  Giles  said 
they  were  not  terms,  but  truths  that  were  unpleasant.     He  proceeded  next 
to  consider  the  alien-law,  and  to  answer  the  observations  of  gentlemen  in 
respect  to  aliens  having  no  rights.     In  advocating  the  rights  of  aliens,  he 
said,  he  did  not  consider  what  was  popular,  but  what  was  justice.    A  stranger 
coming  into  a  country  had  a  right  to  protection.     It  was  not  a  matter  of 
favour   only.     A  great  number  of  persons  already  admitted   into  this 
country,  he  said,  were  not  citizens.     They  would  be  affected  by  this  law. 
He  insisted  that  aliens  were  not  only  entitled  to  a  trial  by  jury,  but  to  that 
particular  benefit  of  a  jury  de  medieta  telinguce,  by  the  law  in  force  both 
in  England  and  here.     It  had  been   said,  however,  that  this  was  not  a 
trial  of  guilt,  but  to  prevent  it.     That,  he  said,  made  no  difference.     A 
trial  was  still  necessary.     He  conceived  that  there  was  no  foreign,  but  a 
domestic  reason  for  this  law.     It  was  said  that  the  French  were  ambitious. 
But  was  this  a  ground  for  the  laws  to  affect  our  domestic  operations  ?     If 
they  were  repealed  the  government  would  be  as  firm  as  it  was  now.     The 
administration,  he  said,  was  not  the  government.     The  government  could 
subsist  without  it.     For  instance,  it  was  once  thought  in  Switzerland  that 
it  was  necessary  to  keep  a  bear  amongst  them,  for  their  prosperity  and 
safety.     After  awhile  the  bear  broke  his  chain  and  run  away.     For  some 
time  after,  the  people  continued  to  lament  his  escape,  and  expected  that 
some  dreadful  calamity  would  befall  them.     But,  after  waiting  some  time, 
and  finding  that  no  such  calamity  arrived,  they  began  to  bring  themselves- 
by  degrees  to  believe,  that  the  bear  was  of  no  use,  and  that  they  could  do 
as  well  without-him,  as  with  him.     Mr.   Giles  then  said  that  he  was  as 
much  in  favour  of  government  as  any  man,  and  would  contribute  as 
liberally  to  its  support,  but  was  not  an  advocate  for  improper  measures. 
He  then  proceeded  to  consider  the  sedition-law.     He  observed,  that  the 
gentleman  from  Prince  George  had  mentioned  the  God  of  Heaven.     But 
he  had  nothing  to  do  with  the  Constitution.     If  he  had,  it  was  omnipotent. 
On  the  contrary,  Mr.   Giles  said,  that  the  powers  of  government  were 
derived  from   the  Constitution,  and  not  from  the  reason  and  nature  of 
things.     Implication,  he  said,  was  a  dangerous  doctrine.     There  was   an 
express  prohibition  of  all  powers  not  granted  by  the  Constitution.     The 
Constitution  and  this  law  convey  to  the  mind  different  impressions.     The 
derivation  of  power,  he  again  insisted,  could  not  be  proved  otherwise  than 
from  the  Constitution.     The  powers  not  given  by  that  were  retained  to 
the  states,  or  to  the  people.    What,  then,  was  given  to  each  1    The  general 
government,  he  said,  should  not  be  entrusted  to  decide  upon  character,  or 
in  case  of  murder.     That  power  was  reserved  to  the  states.     That  was 
the  proper  authority  for  regulating  and  deciding  upon  these  matters.     Mr. 
Giles  made  some  further  observations  on  the  last  clause  of  the  law  last 
mentioned,  and  then  said,  that  declaring  these  acts  of  Congress  unconsti- 
tutional, satisfied  the  oaths  of  the  members  of  this  Assembly.     He  would 
agree  to  stop  after  that,  if  they  thought  proper,  and  to  strike  out  everything 
beyond  it.     If  gentlemen  thought  the  laws  were  unconstitutional,  they 
were  bound  to  say  so,  otherwise  it  would  be  a  dereliction  of  the  oath 
which  they  had  taken.     For  his  part,  he  said,  he  should  vote  for  some- 


148  DEBATE  ON  VIRGINIA  RESOLUTIONS. 

thing  which  would  express  his  opinion  upon  the  subject.  He  would, 
however,  at  any  rate,  move  to  strike  out  of  the  resolutions  before  the 
committee,  the  word  alone. 

Mr.  NICHOLAS  seconded  Mr.  Giles's  motion  for  striking  out  of  the  resolu- 
tions the  word, alone;  and  further  observed,  that  either  the  gentleman 
from  Prince  George  or  himself,  misunderstood  the  gentleman  from  Caro- 
line, in  respect  to  calling  a  convention.  He  hoped,  therefore,  that  the  gen- 
tleman from  Caroline  would  explain  himself  upon  that  point.  Mr.  Nicho- 
las then  stated  what  he  understood  that  gentleman  to  say,  which  he  himself 
approved ;  but  on  the  contrary,  did  not  approve  the  calling  a  convention. 

Mr.  BOLLING  said,  that  he  understood  the  gentleman  from  Caroline  in  the 
same  manner  that  the  gentleman  who  was  last  up  did,  in  respect  to  calling 
a  convention:  Mr.  Soiling  also  made  several  observations  to  show  that 
the  gentleman  from  Prince  George  had  misunderstood  Mr.  Jefferson's 
letter  which  had  been  quoted  by  him. 

Mr.  JOHN  TAYLOR  said  he  would  explain  in  a  few  words  what  he  had 
before  said.  *  That  the  plan  proposed  by  the  resolutions  would  not  even- 
tuate in  war,  but  might  in  a  convention.  He  did  not  admit,  or  contem- 
plate, that  a  convention  would  be  called.  He  only  said,  that  if  Congress, 
upon  being  addressed  to  have  those  laws  repealed,  should  persist,  they 
might,  by  a  concurrence  of  three-fourths  of  the  states,  be  compelled  to  call 
a  convention.  Mr.  Taylor  further  said,  that  while  up  he  would  himself  move 
to  strike  out  certain  words  of  the  resolutions,  if  the  same  were  in  order ; 
which  being  agreed  to  without  a  question  taken,  Mr.  Taylor  proceeded  to 
do  so. 

The  original  resolutions  offered  by  him  to  the  House,  and  referred  to 
the  committee  of  the  whole  House  on  the  state  of  the  commonwealth,  were 
in  the  following  words  : 

Resolved,  As  the  opinion  of  this  committee,  that  the  General  Assembly 
of  Virginia  doth  unequivocally  express  a  firm  resolution  to  maintain  and 
defend  the  Constitution  of  the  United  States,  and  the  Constitution  of  this 
state,  against  every  aggression,  either  foreign  or  domestic,  and  that  it  will 
support  the  government  of  the  United  States  in  all  measures  warranted  by 
the  former. 

That  this  Assembly  most  solemnly  declares  a  warm  attachment  to  the 
union  of  the  states,  to  maintain  which,  it  pledges  all  its  powers ;  and  that 
for  this  end  it  is  its  duty  to  watch  over  and  oppose  every  infraction  of 
those  principles,  which  constitute  the  only  basis  of  that  union,  because  a 
faithful  observance  of  them  can  alone  secure  its  existence,  and  the  public 
happiness. 

That  this  Assembly  doth  explicitly  and  peremptorily  declare  that  it 
views  the  powers  of  the  federal  government  as  resulting  from  the  compact, 
to  which  the  states  alone  are  parties,  as  limited  by  the  plain  sense  and  in- 
tention of  the  instrument  constituting  that  compact ;  as  no  further  valid 
than  they  are' authorized  by  the  grants  enumerated  in  that  compact;  and 
that  in  case  of  a  deliberate,  palpable,  and  dangerous  exercise  of  other 


DEBATE  ON  VIRGINIA  RESOLUTIONS.  149 

powers  not  granted  by  the  said  compact,  the  states,  who  are  parties  thereto, 
have  the  right,  and  are  in  duty  bound,  to  interpose  for  arresting  the  pro- 
gress of  the  evil,  and  for  maintaining  within  their  respective  limits,  the 
authorities,  rights,  and  liberties  appertaining  to  them. 

That  the  General  Assembly  doth  also  express  its  deep  regret  that  a 
spirit  has,  in  sundry  instances,  been  manifested  by  the  federal  government, 
to  enlarge  its  powers  by  forced  constructions  of  the  constitutional  charter 
which  defines  them  ;  and  that  indications  have  appeared  of  a  design  to  ex- 
pound certain  general  phrases  (which  having  been  copied  from  the  very 
limited  grant  of  powers  in  the  former  articles  of  confederation,  were  the 
less  liable  to  be  misconstrued),  so  as  to  destroy  the  meaning  and  effect  of 
the  particular  enumeration,  which  necessarily  explains  and  limits  the  gene- 
ral phrases,  and  so  as  to  consolidate  the  states  Uy  degrees  into  one  sove- 
reignty, the  obvious  tendency  and  inevitable  result  of  which  would  be  to 
transform  the  present  republican  system  of  the  United  States  into  an  abso- 
lute, or  at  best,  a  mixed  monarchy. 

That  the  General  Assembly  doth  particularly  protest  against  the  palpa- 
ble and  alarming  infractions  of  the  Constitution,  in  the  two  late  cases  of 
the  "  alien  and  sedition-acts,"  passed  at  the  last  session  of  Congress,  the 
first  of  which  exercises  a  power  nowhere  delegated  to  the  federal  govern- 
ment ;  and  which  by  uniting  legislative  and  judicial  powers  to  those  of 
executive,  subverts  the  general  principles  of  free  government,  as  well  as 
the  particular  organization,  and  positive  provisions  of  the  Federal  Constitu- 
tion ;  and  the  other  of  which  acts  exercises  in  like  manner  a  power  not 
delegated  by  the  Constitution,  but  on  the  contrary  expressly  and  positively 
forbidden  by  one  of  the  amendments  thereto  ;  a  power  which  more  than 
any  other  ought  to  produce  universal  alarm,  because  it  is  levelled  against 
that  right  of  freely  examining  public  characters  and  measures,  and  of  free 
communication  among  the  people  thereon,  which  has  ever  been  justly 
deemed  the  only  effectual  guardian  of  every  other  right. 

That  this  state  having  by  its  convention  which  ratified  the  Federal  Con- 
stitution, expressly  declared,  "that  among  other  essential  rights,  the  liberty 
of  conscience  and  of  the  press  cannot  be  cancelled,  abridged,  restrained,  or 
modified  by  any  authority  of  the  United  States,"  and  from  its  extreme 
anxiety  to  guard  these  rights  from  every  possible  attack  of  sophistry  or 
ambition,  having,  with  other  states,  recommended  an  amendment  for  that 
purpose,  which  amendment  was  in  due  time  annexed  to  the  Constitution, 
it  would  mark  a  reproachful  inconsistency  and  criminal  degeneracy,  if  an 
indifference  were  now  shown  to  the  most  palpable  violation  of  one  of  the 
rights  thus  declared  and  secured,  and  to  the  establishment  of  a  precedent 
which  may  be  fatal  to  the  other. 

That  the  good  people  of  this  commonwealth  having  ever  felt,  and  con- 
tinuing to  feel  the  most  sincere  affection  to  their  brethren  of  the  other  states, 
the  truest  anxiety  for  establishing  and  perpetuating  the  union  of  all,  and 
the  most  scrupulous  fidelity  to  that  Constitution  which  is  the  pledge  of 
mutual  friendship,  and  the  instrument  of  mutual  happiness,  the  General 
Assembly  doth  solemnly  appeal  to  the  like  dispositions  of  the  other  states, 
in  confidence  that  they  will  concur  with  this  commonwealth  in  declaring, 
as  it  does  hereby  declare,  that  the  acts  aforesaid  are  unconstitutional,  and 


150  DEBATE  ON  VIRGINIA.  RESOLUTIONS. 

not  law,  but  utterly  null,  void,  and  of  no  force  or  effect,  and  that  the  ne- 
cessary and  proper  measures  will  be  taken  by  each,  for  co-operating  with 
this  state  in  maintaining  unimpaired  the  authorities,  rights,  and  liberties 
reserved  to  the  states  respectively,  or  to  the  people. 

That  the  Governor  be  desired  to  transmit  a  copy  of  the  foregoing  reso- 
lutions to  the  executive  authority  of  each  of  the  other  states,  with  a  request 
that  the  same  may  be  communicated  to  the  legislature  thereof. 

And  that  a  copy  be  furnished  to  each  of  the  senators  and  representa- 
tives, representing  this  state  in  the  Congress  of  the  United  States. 

The  word  "alone"  in  the  third  clause,  and  the  words  "and  not  law, 
but  utterly  null,  void,  and  of  no  force  or  effect,"  in  the  seventh  clause,  were 
stricken  out  of  the  foregoing  resolutions. 

Mr.  John  Taylor's  resolutions  thus  amended,  being  then  read  by  the 
chairman,  Mr.  Brooke  moved  to  amend  the  same,  by  substituting  in  lieu 
thereof  the  resolution  which  he  had  offered  to  the  committee  on  Tuesday, 
the  18th  instant,  and  which  was  then  laid  upon  the  table.  The  question 
was  put  thereupon,  and  the  amendment  disagreed  to  by  the  committee. 
The  main  question  was  then  put  on  Mr.  John  Taylor's  resolutions  as 
amended  by  himself,  and  agreed  to. 

The  committee  then  rose,  and  Mr.  Breckenridge  reported,  that  the  com- 
mittee of  the  whole  House  on  the  state  of  the  commonwealth  had  had  the 
same  under  their  consideration,  and  had  come  to  certain  resolutions 
thereupon,  which  he  handed  in  to  the  clerk's  table,'  (being  Mr.  John 
Taylor's  resolutions,  as  a5ove  stated,  amended  and  agreed  to  by  the  com- 
mittee.) 

General  LEE  then  arose  and  observed,  that  although  desirous  of  ending 
the  debate,  yet  wishing,  with  the  gentleman  from  Amelia,  to  meliorate  the 
paper  before  them,  by  striking  out  some  other  part  of  the  resolutions,  he 
would  move  an  amendment  to  that  effect.  He  then  read  the  fourth  clause 
of  the  resolutions,  and  objected  to  the  same  as  containing  assertions  which 
he  could  not  believe,  and  at  the  same  time  also  a  high  charge  against  the 
general  government.  He  therefore  moved  to  strike  out  that  clause. 

Mr.  ROLLING  said,  that  in  order  to  convince  the  gentleman  from  West- 
moreland of  the  futility  of  his  proposition,  he  hoped  that  no  other  gentle- 
man would  disgrace  himself,  and  the  wisdom  of  the  House,  by  gratifying 
the  gentleman  with  a  reply  on  the  occasion.  He  (Mr.  Boiling)  had  arisen, 
therefore,  to  second  the  gentleman's  motion,  and  to  give  him  complete 
satisfaction  by  bringing  the  question  to  an  end. 

Mr.  GILES  made  some  remarks  in  favour  of  the  clause  proposed  to 
be  stricken  out.  He  stated  several  reasons  to  show  why  it  should  be 
retained  ;  and  concluded  by  expressing  his  objection  to  its  being  stricken 
out. 

Mr.  NICHOLAS  hoped  the  motion  made  by  the  gentleman  from  West- 
moreland, for  expunging  the  clause  in  question,  would  not  prevail.  With- 
out that  clause,  it  was  true,  he  would  vote  for  the  resolutions,  but  his 


DEBATE  ON  VIRGINIA  RESOLUTIONS.  151 

anxiety  about  them  would  be  very  much  lessened,  if  it  was  expunged ; 
for  then  it  would  appear,  that  none  of  the  measures  of  the  Federal 
Government  were  objected  to  but  the  alien  and  sedition-bills.  This 
was  not  the  fact ;  and  it  must  also  be  in  the  recollection  of  many 
gentlemen  in  that  House,  that  some  of  those  members  who  were  now 
most  loud  in  support  of  the  measures  of  which  he  and  his  friends  com- 
plained, and  who  denied  with  most  confidence  the  right  of  the  Assembly 
to  interfere,  had  themselves  upon  other  occasions  acted  very  differently, 
and  justified  that  interference.  One  of  the  gentlemen  distinguished  him- 
self in  a  particular  instance,  for  which  he  had  his  most  hearty  approbation, 
as  he  considered  it  a  subject  highly  interesting  to  the  happiness  of  his 
country.  How  gentlemen  could  reconcile  their  opinions  at  past  periods, 
with  those  they  supported  at  this  day,  it  was  incumbent  upon  them  to 
show.  Mr.  Nicholas  said,  it  was  with  the  deepest  regret  that  he  reviewed 
the  principal  measures  of  the  Federal  Government,  as  they  appeared  to 
him  to  tend  directly  to  a  consolidation  of  the  state  governments,  which  he 
believed  would  eventuate  in  monarchy.  Upon  all  questions  about  the  di- 
vision of  power,  everything  had  been  given  to  the  executive  from  Con- 
gress, everything  to  Congress  from  the  states.  The  general  phrases  in 
the  Constitution,  which  were  only  intended  to  explain  and  limit  the  powers 
of  the  general  government,  have  been  considered  as  giving  powers,  thereby 
destroying  the  effect  of  the  particular  enumeration  of  powers,  and  of  the 
security  derived  from  the  twelfth  amendment  to  the  Constitution.  He 
would  state  the  particular  acts  which  he  thought  most  obnoxious.  The 
first  in  point  of  time  were  the  bank  and  assumption  laws,  for  which  he 
could  find  no  authority  in  the  Constitution  of  the  United  States,  and  by 
which  the  commercial  and  monied  interests  of  this  country  had  been  de- 
voted to  certain  individuals  and  their  theories,  and  concentred  a  force  more 
powerful  and  operative  than  an  army  of  twenty  thousand  men.  The 
British  treaty  and  its  effects  were  so  well  known  to  this  House,  that  it  was 
unnecessary  to  dilate  upon  that  subject.  The  doctrine  about  appropriations 
of  money  was  so  important  in  its  consequences,  that  it  merited  the  most 
serious  attention  of  the  people  of  America.  The  Constitution  declares, 
that  "  no  money  shall  be  drawn  from  the  treasury  but  in  consequence  of 
appropriations  made  by  law  ;"  notwithstanding  which,  it  is  now  contended, 
that  the  President  may  by  his  single  act,  bind  the  Congress  to  make  appro- 
priations, whether  they  deem  them  proper  or  not,  thereby  transferring  from 
the  representatives  of  the  people  to  the  executive  magistrate,  the  command 
of  the  national  purse.  The  stamp-act  subjects  the  people  to  an  obnoxious 
and  inconvenient  tax,  and  changes  already,  and  may  change  still  more 
hereafter,  the  system  of  evidence  which  the  state  laws  required  in  their 
own  courts.  The  ultimate  effect  of  this  may  be  to  shut  up  the  state 
courts ;  for  it  is  even  contended,  that  delivery  bonds  are  subject  to  the  tax. 
If  this  be  true,  other  process  may  be  taxed  so  highly  as  may  amount  to  a 
denial  of  justice  :  the  transferring  the  important  power  of  borrowing- 
money  and  raising  armies,  vested  by  the  Constitution  in  Congress,  to  the 
President :  the  utter  neglect  of  the  militia :  the  attempt  to  render  them 
useless  and  unnecessary,  by  raising  standing  armies,  and  by  authorizing 
the  President  to  employ  any  number  of  volunteers  that  he  may  think 


152  DEBATE  ON  VIRGINIA  RESOLUTIONS. 

proper,  when  the  only  reason  for  a  preference  of  volunteers  that  occurred 
to  him  was,  that  the  President  had  the  appointment  of  the  officers  of  those 
corps,  whereas  the  militia  officers  were  appointed  by  the  state  govern- 
ments, greatly  excited  his  suspicion.  He  confessed,  his  objections  to 
these  corps  had  been  very  much  increased  since  he  had  seen  a  letter  from 
the  Secretary  of  War,*  from  which  it  appeared  to  him  that  the  design  was 
to  arm  one  part  of  the  people  against  the  other.  He  well  remembered, 
that  when  the  Constitution  was  under  discussion,  great  stress  was  laid 
upon  this  circumstance ;  and  it  was  believed  it  would  give  great  security 
to  the  state  governments,  and  to  the  liberties  of  the  people ;  but  so  great 
a  revolution  had  a  few  years  produced,  that  some  gentlemen  were  willing 
to  abandon  principles  that  have  been  heretofore  deemed  the  most  sacred. 
The  conduct  of  the  executive  in  bestowing  offices,  more  in  the  style  of 
rewards  for  the  support  of  particular  measures,  than  from  any  regard  to 
the  general  merits  of  the  citizens  called  to  fill  them,  and  upon  the  same 
ground  removing  from  office  every  man  who  ventures  to  hazard  an 
opinion  in  opposition  to  any  of  the  measures  that  have  been  pursued,  ne- 
cessarily created  alarm.  He  mentioned  the  removal  from  office  of  Mr. 
Tenche  Coze  and  Mr.  Gardiner,  in  support  of  what  he  had  said,  and 
expressed  a  fear,  that  by  these  means  that  numerous  and  influential  class 
of  citizens,  who  ought  to  consider  themselves  as  the  public  servants, 
might  be  made  the  creatures  of  executive  power ;  and  if,  said  Mr.  Nicholas, 
the  day  should  ever  come  that  the  office  of  President  should  devolve  upon 
an  ambitious  man,  public  officers  might  be  made  the  most  powerful  instru- 
ments to  promote  his  views.  The  influence  would  operate  upon  all  those 
who  expect,  or  want  public  employment. 

Mr.  Nicholas  then  observed,  there  was  another  subject,  which  he  felt 
the  greatest  pain  at  mentioning.  Nothing  but  its  importance  and  con- 
nexion with  the  subject  in  discussion  should  induce  him  to  do  it.  The 
judiciary  department  of  every  government  should  be  most  pure ;  there 
should  not  be  a  suspicion  of  a  previous  bias  upon  the  mind  of  the  judge. 
Every  man  who  goes  into  a  court  ought  to  consider  himself  as  in  a  sanc- 
tuary. .  The  utmost  ingenuity  of  man  had  been  exercised  to  form  a  judi- 
ciary that  should  be  beyond  the  reach  of  influence.  Was  the  conduct  of 
the  judiciary  what  it  ought  to  have  been  1  He  had  always  supposed  courts 
were  instituted  to  dispense  justice  between  man  and  man,  between  indi- 
viduals and  the  society ;  but  he  feared  that  facts  might  be  stated  from 
which  it  might  be  inferred  that  it  was  considered  by  some  that  there  were 
other  objects,  such  as  the  propagating  of  particular  opinions ;  that  there 
was  united  in  the  same  man,  the  duties  of  a  missionary  and  of  a  judge. 
He  said  this  point  of  his  argument  was  so  disagreeable  to  him,  that  he 

*  Extract  of  a  letter  from  the  Secretary  of  War  to  an  officer  of  high  rank  in  the  militia 
of  Virginia,  who  had  communicated  the  wish  of  several  volunteer  companies  to  tender 
their  services. 

"It  being  deemed  important  not  to  accept  of  companies  composed  of  disaffected 
persons,  who  might  from  improper  motives  be  desirous  to  intrude  themselves  into  the 
army  under  pretence  of  patriotic  association,  it  will  be  proper  certificates  from  promi- 
nent and  known  characters,  setting-  forth  the  principles  of  the  associates,  those  of  the 
officers  elect, especially ;  and  that  the  company  have  complied  with  the  pre- 
requisite condition  of  the  law,  be  also  presented." 


DEBATE  ON  VIRGINIA  RESOLUTIONS.  153 

would  not  dwell  upon  it,  but  would  dismiss  it  with  a  declaration  that  he 
felt  great  pleasure  in  saying  that  there  were  judges  to  whom  he  had  never 
heard   extra-judicial   interference   in    political    matters   attributed.      Mr. 
Nicholas  observed,  that  thinking  of  the  measures  that  he  had  stated  as  he 
did,  he  could  not  consent  to  expunge  Ihe  clause.     Indeed,  if  he  did  not 
give  his  full  assent  to  what  was  stated  in  that  clause,  he  would  have  been 
willing  to  confine  the  efforts  of  the  House  to  procure  the  repeal  of  the  alien 
and  sedition-bills.       But  considering  these  as  a  part  of  a  system  that 
brought  into  jeopardy  the  dearest  interests  of  his  country,  he  thought  it 
was  their  duty  to  represent  to'  the  other  states  the  whole  ground  of  the 
public  uneasiness.     As  to  the  alien  and  sedition-laws,  he  had  intended  at 
an  earlier  part  of  the  debate  to  have  made  some  observations,  but  other 
gentlemen  on  the  same  side  with  himself,  had  expressed  his  opinions  better 
than  he  could  have  done.     He  would   therefore  only  say  that  he  con- 
sidered them   as    unconstitutional,  and   that  if  the   principle  was   once 
established  that  Congress  have  a  right  to  make  such  laws,  the  tenure  by 
which  we  hold  our  liberty  would  be  entirely  subverted^.     Instead  of  rights 
independent  of  human  control,  we  must  be  content  to  hold  by  the  courtesy 
and  forbearance  of  those  whom  we   have   heretofore  considered  as  the 
servants  of  the  people.     Mr.  Nicholas  said  he  had  been  a  member  of  the 
convention  that  adopted  the  Constitution ;  that  he  had  been  uniformly  a 
friend  to  it ;  that  he  considered  himself  as  now  acting  in  support  of  it ;  that 
he  knew  it  was  the  artifice  of  those  on  the  other  side  to  endeavour  to  at- 
tach a  suspicion  of  hostility  to  the  government  to  those  who  differed  with 
them  in  opinion.     For  his  part,  he  despised  such  insinuations,  as  far  as 
they  might  be  levelled  at  him.     He  appealed  to  his  past  life,  and  to  his 
situation  for  his  justification.     Upon  what  gentlemen's  claim  to  exclusive 
patriotism  was  founded,  he  was  yet  to  learn.     The  friends  of  the  resolu- 
tions yielded  to  none  in  disinterested  attachment  to  their  country,  to  the 
Constitution  of  the  United  States,  to  union,  and  to  liberty.     The  conduct 
and  the  motives  of  all  would  be  judged  of  by  the  people  of  this  country, 
to  whom  they  were  all  known.    Mr.  Nicholas  had  full- confidence  that  the 
amendment  would  be  rejected,  and  the  resolutions  without  further  alteration, 
would  meet  the  approbation  of  a  great  majority  of  that  House. 

General  LEE  said,  that  he  wished  to  refute  the  observations  of  the  gen- 
tleman last  up,  in  favour  of  retaining  the  clause.  (He  was  proceeding  to 
do  so,  when  he  was  interrupted  By  Mr.  Nicholas,  who  observed  that  the 
gentleman  had  misunderstood  him,  and  then  declared  in  substance  what 
he  had  before  actually  said.) 

After  such  explanation,  General  Lee  proceeded  to  justify  the  measures 
of  the  General  Government  in  respect  to  the  removal  of  persons  from 
office.  As  to  Mr.  Coxe,  as  far  as  he  could  recollect  the  circumstances  of 
his  conduct,  he  thought  his  removal  proper.  And  as  to  Mr.  Gardiner,  he 
confessed  it  was  a  case  with  which  he  was  quite  unacquainted.  In  respect 
to  the  judiciary  being  forward  in  delivering  their  opinions  on  public  mea- 
sures, he  would  observe  that  the  state  judges  had  done,  and  still  did  the 
same.  He  blamed  them  not  for  it.  For  the  appointment  of  men  as  judges 
did  not  deprive  them  of  their  rights  as  citizens.  But  nothing  of  this  kind, 


154  DEBATE  ON  VIRGINIA  RESOLUTIONS. 

he  said,  would  prove  the  propriety  cf  the  clause  proposed  to  be  stricken 
out. 

General  Lee  then  observed,  that  he  considered  the  argument  of  the  gen- 
tleman from  Amelia,  in  respect  to  the  connexion  between  the  alien-law, 
and  the  law  concerning  volunteers,  weak.  For  his  army  of  aliens  being 
soldiers  by  compulsion,  would  turn  against  the  President,  instead  of  assist- 
ing him.  The  gentleman,  too,  had  called  in  question  the  ends  which  the 
government  had  in  view  in  raising  an  army  and  navy.  General  Lee  pro- 
ceeded to  answer  the  objections  upon  that  head,  by  pointing  out  those 
ends.  As  to  the  alien  and  sedition-laws,  he  contended  that  the  only  real 
view  in  passing  them,  was  to  protect  us  from  foreign  invasion.  He  denied 
that  there  was  an  inclination  in  the  General  Government  to  crush  a  party. 
The  construction  placed  by  the  gentleman  from  Amelia,  upon  the  Presi- 
dent's answer  to  the  address  of  the  people  of  Bath  was  erroneous.  Gene- 
ral Lee  then  read  part  of  that  answer,  and  placed  a  different  construction 
upon  the  expressions  which  it  contained.  He  conceived  the  President's 
meaning  only  to  be,  that  it  depended  upon  Virginia  to  say  whether  or  not 
there  was  a  party  in  the  United  States  to  be  crushed,  &c. ;  not  positively 
asserting  on  his  part,  that  there  was  such  a  party. 

General  Lee  then  observed,  that  if  the  people  could  govern  themselves, 
how  could  that  be  done  but  by  obedience  to  the  laws  ?  Their  freedom 
could  not  be  preserved  by  any  other  mode.  For  if  the  principle  of  obey- 
ing the  will  of  the  majority  was  once  destroyed,  it  would  prostrate  all  free 
government.  But  the  gentleman  from  Amelia  had  considered  himself  as 
one  of  the  party  to  be  crushed,  alluded  to  by  the  President.  He  (General 
Lee)  was  surprised  at  such  an  idea.  That  gentleman  had  committed  no 
crime.  He  had  for  some  time  before,  been  honoured  with  a  seat  in  Con- 
gress. And  there,  although  he  had  generally  been  in  a  minority,  yet  it 
was  nothing  more  than  the  situation  in  which  he  (General  Lee)  had  often 
been  placed  here.  In  neither  was  there  any  criminality.  A  difference,  it 
was  true,  did  exist  between  these  cases ;  and  he  derived  consolation  from 
reflecting,  that  though  he  himself  was  in  a  minority  here,  he  was  still 
in  a  majority  with  that  body  which  properly  had  the  determination  of 
national  matters.  He  concluded  with  hoping  that  the  amendment  would 
prevail. 

Mr.  TYLER  arose  next,  and  said  that  an  able  general  would  fight  and 
struggle  to  the  last.  When  driven  from  one  stronghold,  he  would  retreat 
to  another;  and  finding  himself  no  longer  able  to  oppose  superior  num- 
bers, he  would  attempt  to  divide  his  enemy.  Mr.  Tyler  believed  the  plan 
on  the  present  occasion,  was  to  divide  the  republican  members,  but  he 
hoped  the  gentleman's  plan  would  not  succeed ;  and  that  the  clause  would 
be  retained.  He  thought  it  contained  solemn  truths.  He  doubted  not  but 
that  many  of  the  measures  of  the  General  Government  had  a  tendency 
to  monarchy,  absolute  or  limited.  These  measures  had  been  pointed  out 
by  the  gentleman  from  Albemarle.  He  would  however  state  them  over 
again.  Mr.  Tyler  did  so.  He  particularly  relied  on  the  growing  influ- 
ence of  the  executive,  and  the  probability  of  an  alliance  with  a  corrupt 
monarchy,  and  an  open  rupture  with  a  republic,  which  he  said  had  been 
openly  advocated  by  gentlemen  of  high  character.  He  inquired  what  had 


DEBATE  ON  VIRGINIA  RESOLUTIONS.  155 

been  the  effects  of  executive  influence  in  Great  Britain  ?  He  said,  that 
by  the  revolution  of  1688,  and  by  several  statutes  of  Parliament  passed 
about  that  time,  many  of  the  great  rights  of  the  people,  and  the  principles 
of  freedom  had  been  established ;  but  that  it  might,  at  this  time,  be  well 
doubted  if  the  people  were  more  free  than  they  were  before  the  revolu- 
tion. This  was  to  be  ascribed  to  the  immense  influence  of  the  crown, 
which  had  three  millions  at  disposal.  He  demanded  what  other  cause  had 
prevented  a  reform  in  Parliament,  upwards  of  three  hundred  of  whose 
members  were  chosen  by  a  fewer  number  of  electors.  He  asked  if  there 
was  not  some  similitude  between  the  systems  pursued  by  our  administra- 
tion, and  that  of  Great  Britain  ?  He  said  that  the  people  of  Great  Britain 
were  clamorous  for  peace,  and  Lord  Malmesbury  was  sent  to  make  peace ; 
but  he  returned,  and  made  no  peace.  He  would  not  follow  the  compari- 
son. Our  fears,  he  said,  had  been  assailed.  He  inquired  whom  were  we 
to  fear?  He  feared  no  man,  and  no  measure,  but  that  of  offending  the 
people ;  and  he  believed  that  the  people  were  never  offended  at  any  effort 
to  maintain  their  rights,  or  to  protect  their  liberties.  The  gentleman  from 
Westmoreland  had  said,  that  the  gentleman  from  Amelia  could  not  con- 
sider himself  as  one  of  the  party  to  be  crushed,  and  had  asked  what 
crime  that  gentleman  had  committed.  Mr.  Tyler  said,  that  the  gentleman 
from  Amelia  had  committed  a  crime ;  the  crime  of  differing  in  opinion 
with  the  administrators  of  the  government.  This  was  the  crime  that  had 
incarcerated  Mr.  Lyon.  He  asked  what  prospect  have  we  of  a  change  of 
these  measures,  which  he  viewed  as  the  harbingers,  the  forerunners  of 
monarchy,  either  limited  or  absolute.  Were  we  not  told  that  they  must 
have  more  men,  and  a  little  more  money  ;  augment  our  standing  army, 
and  increase  our  navy ;  and  '  force  the  construction  of  the  Constitution  to 
warrant  alien  and  sedition-bills?  Mr.  Tyler  concluded  by  hoping  that  the 
clause  would  be  retained.  He  believed  it  contained  the  truth,  and  was 
very  important ;  and  thought  that  the  people  of  Virginia  called  forborne 
such  measure. 

Mr.  John  Taylor's  resolutions,  as  amended,  agreed  to  by  the  Committee, 
and  reported  to  the  House  (ante,  p.  149-50),  being  read  the  second  time, 
a  motion  was  made,  and  the  question  being  put,  to  amend  the  same  by 
expunging  from  them  the  fourth  clause  in  the  following  words : 

"  That  the  General  Assembly  doth  also  express  its  deep  regret,  that  a 
•  spirit  has  in  sundry  instances  been  manifested  by  the  Federal  .Govern- 
ment  to  enlarge  its  powers  by  forced  constructions  of  the  constitutional 
charter  which  defines  them ;  and  that  indications  have  appeared  of  a 
design  to  expound  certain  general  phrases  (which  having  been  copied 
from  the  very  limited  grant  of  powers  in  the  former  articles  of  confedera- 
tion, were  the  less  liable  to  be  misconstrued)  so  as  to  destroy  the  meaning 
and  effect  of  the  particular  enumeration,  which  necessarily  explains  and- 
limits  the  general  phrases,  and  so  as  to  consolidate  the  states,  by  degrees, 
into  one  sovereignty,  the  obvious  tendency  and  inevitable  result  of  which 
would  be  to  transform  the  present  republican  system  of  the  United  States 
into  an  absolute,  or  at  best  a  mixed  monarchy." 

It  passed  in  the  negative,  ayes  68 — noes  96. 

On  a  motion  made  by  General  Lee,  seconded  by  Mr.  Boiling,  ordered, 


156  DEBATE  ON  VIRGINIA  RESOLUTIONS. 

that  the  names  of  the  ayes  and  noes  on  the  foregoing  question  be  inserted 
in  the  journal. 

The  names  of  those  who  voted  in  the  affirmative,*are  Messrs.  Bailey, 
Ware',  Anderson,  Porterfield,  Poage,  White,  Otey,  Logwood,  Tate,  Baker, 
Breckenridge,  M'Guire,  Moorman,  Spencer,  Bedford,  Harrison,  Herbert, 
Magill,  Bynum,  Reives,  John  Mathews,  Cavendish,  Royal,  Snyder,  King, 
Fisher,  Simons,  Godwin,  Young,  Richard  Corbin,  Thomas  Lewis,  Turner, 
Wallace,  Pollard,  Gregory,  Powell,  Clapham,  Cowan,  Evans,  Ingles, 
James  Taylor,  Watkins,  Upshur,  Darby,  Claughton,  Clarke,  Divan,  Cure- 
ton,  George  K.  Taylor,  Brooke,  Robinson,  Ellegood,  M'Coy,  Coonrod, 
Wilson,  Glasscock,  Caruthers,  Andrew  Alexander,  Davis,  Charles  Lewis, 
Blow,  Booth,  Lee,  Bradley,  Drope,  Crockett,  Griffin,  Andrews— 68. 

And  the  names  of  those  who  voted  in  the  negative,  are  Messrs.  Cabell, 
Nicholas,  Walker,  Giles,  Fletcher,  Boiling,  William  Allen,  Colwell,  Per- 
row,  John  Taylor,  Buckner,  Tyler,  Cheatham,  Thomas  A.  Taylor,  Daniel, 
Roberts,  Shackelford,  Peterson  Goodwyn,  Pegram,  Booker,  Daingerfield, 
Webb,  Jennings,  Homer,  Haden,  Payne,  Greer,  Benjamin  Cooke,  Hall, 
Pleasants,  Heath  I.  Miller,  Jones,  M'Kinzie,  Starke,  Thompson,  Jackson, 
Prunty,  Selden,  Price,  Martin,  Redd,  John  Allen,  Tazewell,  Shearman, 
Joseph  Carter,  Callis,  Meriwether,  Chadwell,  Francis  Eppes^  Hudgins, 
Litchfield,  Roebuck,  Hill,  Nelson,  Mark  Alexander,  Segar,  Richard  H. 
Corbin,  Scott,  Butt,  James  S.  Mathews,  Willis  Riddick,  Josiah  Riddick, 
Semple,  Hurst,  Freeman  Eppes,  Dupuy,  M'Kinley,  Barbour,  Wright, 
Moseley,  Woodson,  Purnall,  Johnston,  Pope,  Rentfro,  William  Carter, 
Hadden,  Barnes,  Cockrell,  Browning,  Gatewood,  Dulaney,  Mercer,  Stan- 
nard,  Nathaniel  Fox,  John  Fox,  Faulcon,  Seward,  Mason,  Gary,  Burn- 
ham,  Hungerford,  Meek,  Shield,  Foushee,  Newton — 96. 

A  motion  was  then  made,  and  the  question  being  put,  to  amend  the  said 
resolutions,  by  striking  out  from  the  word  "  Resolved,"  to  the  end  of  the 
samej,  and  inserting  in  lieu  thereof  the  following  words : 

"  That  as  it  is  established  by  the  Constitution  of  the  United  States,  that 
the  people  thereof  have  a  right  to  assemble  peaceably,  and  to  petition  the 
government  for  a  redress  of  grievances,  it  therefore  appears  properly  to 
belong  to  the  people  themselves  to  petition,  when  they  consider  their  rights 
to  be  invaded  by  any  acts  of  the  general  government ;  and  it  should  be 
left  to  them,  if  they  conceive  the  laws  lately  passed  by  the  Congress  of  the 
United  States,  commonly  called  the  'alien  and  sedition-laws,'  to  be 
unconstitutional,  or  an  invasion  of  their  rights,  to  petition  for  a  repeal  of" 
the  said  laws." 

It  also  passed  in  the  negative,  ayes  60 — noes  104. 

On  a  motion  made  by  Mr.  Brooke,  seconded  by  Mr.  Griffin,  ordered, 
that  the  names  of  the  ayes  and  noes  on  the  foregoing  question  be  inserted 
in  the  journal. 

*  The  names  of  those  who  voted  in  the  affirmative,  are  Messrs.  Bailey, 
Ware,  Anderson,  Porterfield,  Poage,  White,  Otey,  Logwood,  Tate,  Baker, 
Breckenridge,  M'Guire,  Moorman,  Spencer,  Herbert,  Magill,  Bynum, 
Reives,  J.  Mathews,  Cavendish,  Royall,  Snyder,  King,  Fisher,  Simons, 
Nelson,  Evans,  Ingles,  Jas.  Taylor,  Watkins,  Upshur,  Darby*  Clarke, 
Divan,  Cureton,  George  K.  Taylor,  Brooke,  Robinson,  Ellegood,  M'Coy, 


DEBATE  ON  VIRGINIA  RESOLUTIONS.  157 

Coonrod,  Wilson,  Davis,  Charles  Lewis,  Blow,  Booth,  Lee,  Bradley, 
Drope,  Crockett,  Griffin,  Andrews,  Godwin,  Thomas  Lewis,  Turner, 
Wallace,  Pollard,  Powell,  Clapham,  Cowan — 60. 

And  the  names  of  those  who  voted  in  the  negative,  are  Messrs.  Cabell, 
Nicholas,  Walker,  Giles,  Fletcher,  Boiling,  William  Allen,  Colwell,  Per- 
row,  John  Taylor,  Buckner,  Bedford,  Harrison,  Tyler,  Cheatham,  Thomas 
A.  Taylor,  Daniel,  Roberts,  Shackelford,  Peterson  Goodwyn,  Pegram, 
Booker,  Daingerfield,  Webb,  Jennings,  Homer,  Haden,  Payne,  Greer, 
Benjamin  Cooke,  Hall,  Pleasants,  Heath  I.  Miller,  Jones,  M'Kinzie,  Starke, 
Thompson,  Jackson,  Prunty,  Selden,  Price,  Martin,  Redd,  John  Allen, 
Tazewell,  Young,  Richard  Corbin,  Gregory,  Shearman,  Joseph  Carter, 
Callis,  Meriwether,  Chadwell,  Francis  Eppes,  Hudgins,  Litchfield,  Roe- 
buck, Hill,  Marke  Alexander,  Segar,  Richard  H.  Corbin,  Scott,  Butt, 
James  S.  Mathews,  W.  Riddick,  J.  Riddick,  Semple,  Hurst,  Claughton, 
Freeman  Eppes,  Dupuy,  M'Kinley,  Barbour,  Wright,  Moseley,  Woodson, 
Purnall,  Johnston,  Pope,  Rentfro,  William  Carter,  Hadden,  Barnes,  Glass- 
cock,  Caruthers,  Andrew  Alexander,  Cockrell,  Browning,  Gatewood,  Du- 
laney,  Mercer,  Stannard,  Nathaniel  Fox,  John  Fox,  Faulcon,  Seward, 
Mason,  Gary,  Burnham,  Hungerford,  Meek,  Shield,  Foushee,  Newton — 
104. 

And  then  the  main  question  being  put,  that  the  House  do  agree  with  the 
committee  of  the  whole  House  in  the  resolutions  as  reported, 

It  passed  in  the  affirmative,  ayes  100 — noes  63. 

On  a  motion  made  by  Mr.  John  Taylor,  seconded  by  Mr.  Nicholas, 
ordered,  that  the  names  of  the  ayes  and  noes  on  the  foregoing  question  be 
inserted  in  the  journal. 

The  names  of  those  who  voted  in  the  affirmative,  are  Messrs.  Cabell, 
Nicholas,  Walker,  Giles,  Fletcher,  Boiling,  William  Allen,  Colwell,  Per- 
row,  John  Taylor,  Buckner,  Harrison,  Tyler,  Cheatham,  Thomas  A. 
Taylor,  Daniel,  Roberts,  Shackelford,  P.  Goodwyn,  Pegram,  Booker, 
Daingerfield,  Webb,  Jennings,  Horner,  Haden,  Payne,  Greer,  Benjamin 
Cooke,  Hall,  Pleasants,  Heath  I.  Miller,  Jones,  M'Kinzie,  Starke,  Thomp- 
son*, Jackson,  Prunty,  Selden,  Price,  Martin,  Redd,  John  Allen,  Tazewell, 
Young,  Richard  Corbin,  Gregory,  Shearman,  Joseph  Carter,  Callis,  Meri- 
wether, Chadwell,  Francis  Eppes,  Hudgins,  Litchfield,  Roebuck,  Hill, 
Mark  Alexander,  Segar,  Richard  H.  Corbin,  Scott,  Butt,  James  S.  Ma- 
thews,  W.  Riddick,  J.  Riddick,  Semple,  Hurst,  Claughton,  Freeman 
Eppes,  Dupuy,  M'Kinley,  Barbour,  Wright,  Moseley,  Woodson,  Purnall, 
Johnston,  Pope,  Rentfro,  William  Carter,  Hadden,  Glasscock,  Cbckrell, 
Browning,  Gatewood,  Dulaney,  Mercer,  Stannard,  Nathaniel  Fox,  John 
Fox,  Faulcon,  Seward,  Mason,  Gary,  Burnham,  Hungerford,  Meek,  Shield, 
Foushee,  Newton — 100. 

And  the  names  of  those  who  voted  in  the  negative  are  Messrs.  Bailey, 
Ware,  Anderson,  Porterfield,  Poage,  White,  Otey,  Logwood,  Tate,  Baker, 
Breckenridge,  M'Guire,  Moorman,  Spencer,  Bedford,  Herbert,  Magill, 
Bynum,  Reives,  John  Matthews,  Cavendish,  Snyder,  King,  Fisher,  Si- 
mons, Godwin,  Thomas  Lewis,  Turner,  Wallace,  Pollard,  William 
Clarke,  Royall,  Powell,  Clapham,  Cowan,  Nelson,  Evans,  Ingles,  James 
Taylor,  Watkins,  Upshur,  Darby,  Divan,  Cure"ton,  George  K.  Taylor, 


158  ,  DEBATE  ON  VIRGINIA  RESOLUTIONS. 

Brooke,  Robinson,  Ellegood,  M'Coy,  Coonrod,  Wilson,  Caruthers,  Andrew 
Alexander,  Davis,  Charles  Lewis,  Blow,  Booth,  Lee,  Bradley,  Drope, 
Crockett,  Griffin,  and  Andrews — 63. 

The  House  then  ordered  that  the  clerk  do  carry  the  said  resolutions  to 
the  Senate  for  their  concurrence. 


IN  SENATE, 
Monday,  December  24,  1798. 

The  House,  according  to  the  order  of  the  day,  resolved  itself  into  a 
committee  of  the  whole  House,  on  the  resolutions  of  the  House  of  Dele- 
gates, concerning  certain  acts  of  the  Congress  of  the  United  States,  passed 
at  their  last  session ;  and  after  some  time  spent  therein,  Mr.  Speaker  re- 
sumed the  chair,  and  Mr.  Preston  reported  that  the  committee  had,  ac- 
cording to  order,  taken  the  said  resolutions  under  their  consideration,  and 
had  gone  through  the  same,  and  had  directed  him  to  report  the  same  with- 
out any  amendment. 

A  motion  was  then  made  to  amend  the  fifth  resolution,  by  striking  out 
the  words  "  two  late  cases  of  the  alien  and"  and  on  the  question  to  agree 
to  the  same, 

It  passed  in  the  negative — Ayes  5,  Noes  12. 

The  ayes  and  noes  were  required  on  the  above  question. 

Ayes — Burwell  Bassett,  Francis  Peyton,  Benjamin  Temple,  John  Hay- 
mond,  John  Eyre — 5. 

Noes — Creed  Taylor,  Richard  Kennon,  Thomas  Royster,  Archibald 
Stewart,  French  Strother,  Hugh  Holmes,  George  Carrington,  John 
Preston,  John  Hoomes,  Thomas  Newton,  Nicholas  Cabell,  George  Penn 
—12. 

And  then  the  main  question  being  put,  that  the  House  do  agree  to  the 
said  resolutions, 

It  was  resolved  in  the  affirmative.     Ayes  14,  Noes  3. 

Ordered,  That  the  clerk  do  acquaint  the  House  of  Delegates  therewith. 

On  the  above  question  the  ayes  and  noes  were  required. 

Ayes — Creed  Taylor,  Richard  Kennon,  Burwell  Bassett,  Thomas  Roy- 
ster, Archibald  Stewart,  French  Strother,  Hugh  Holmes,  George  Carring- 
ton, John  Preston,  John  Hoomes,  Benjamin  Temple,  Thomas  Newton,' 
Nicholas  Cabell,  George  Penn — 14. 

Noes — Francis  Peyton,  John  Raymond,  John  Eyre — 3. 


HOUSE  OF  DELEGATES,  1798-99. 


159 


The  General  Assembly,  when  these  resolutions  were  adopted,  consisted 
of  the  following  persons : — the  federalists'  names  being  in  italics. 


HOUSE  OF  DELEGATES. 


John  Wise, 
Thomas  M.  Bailey. 

AMHERST. 

Wm.  H.  Cabell, 
Wm.  Ware. 

AUGUSTA. 

Andrew  Anderson, 
Robert  Porterfield. 

ALBEMARLE. 

Wilson  C.  Nicholas, 

Succeeded  Jan.  28,  1799,  by  Wm.  Woods, 
Francis  Walker. 

AMELIA. 
Alex.  Jones, 

Succeeded  17th  Dec.  1799,  by 
Joshua  Chaffin, 
Wm.  B.  Giles. 


George  Poage, 
John  White. 

BEDFORD. 

Isaac  Otey, 
Thos.  Logwood. 

BERKELEY. 

Magnus  Tate, 
John  Baker. 

BOTETOURT. 

James  Breckenridge, 
John  Miller. 

BRUNSWICK. 
James  Fletcher, 
Wm.  Ruffin. 

BUCKINGHAM. 

Powhatan  Boiling. 
Wm.  Allen. 


Francis  M'Guire, 
Robert  Calwell. 

CAMPBELL. 

Daniel  B.  Perrow, 
Achilles  Moorman. 


John  Taylor, 
George  Buckner. 

CHARLOTTE. 

Gideon  Spencer, 
Robert  Bedford, 

CHARLES    CITY. 

Collier  Harrison, 
Samuel  Tyler. 

CHESTERFIELD. 

Matthew  Cheatham, 
Th.  Augustus  Taylor. 

CUMBERLAND. 

John  Hatcher, 
Wm.  Daniel,  Jr. 
CULPEPER. 

John  Roberts, 

John  Shackelford,  Jr. 

DINWIDDIE. 
Peterson  Goodwin, 
John  Pegram,  Jr. 

ELIZABETH  CITY. 

George  Booker, 
W.  Westwood. 


John  Daingerfield, 
James  Webb. 


Roger  West, 

(did  not  attend.) 
John  Carlyle  Herbert. 

FAUQUIER. 

Augustine  Jennings, 
Gustavus  B.  Homer. 

FLUVANNA. 

Joseph  Haden, 
James  Payne. 

FREDERICK. 

Archd.  Magill, 
Lewis  Wolfe. 

FRANKLIN. 

Moses  Greer, 
Benj.  Cooke. 


160 


HOUSE  OF  DELEGATES,  1798-99. 


GREENSVILLE. 

Turner  Bynum. 
Nathanl.  Reives. 

GLOUCESTER. 

Mordecai  Cooke, 
Wm.  Hall. 

GOOCHLAND. 

James  Pleasants,  Jr. 
Heath  T.  Miller. 

GREENBRIAR. 

John  Mathews, 
Wm.  H.  Cavendish. 

GRAYSON. 

Minitree  Jones, 
Greenberry  G.  M'Kinzie. 

HALIFAX. 

Wm.  Royall, 
Richard  Howson. 

HAMPSHIRE. 

John  Snyder, 
Alex.  King. 

HANOVER. 

Thomas  Starke. 
John  Thompson. 

HARRISON. 

John  G.  Jackson, 
John  Prunty. 

HARDY. 

Jacob  Fisher, 
Christian  Simons. 


Miles  Selden, 
Wm.  Price. 


Joseph  Martin, 
John  Redd. 

ISLE  OF  WIGHT. 

Josiah  Godwin, 
Thomas  Whitefield, 
Succeeded  Jan.  2,  1799,  by 
James  Johnston. 

JAMES  CITY. 

John  Allen, 

Littleton  W.  Tazewell, 

KING  AND  QUEEN. 

Henry  Young-, 
Richard  Corbin, 

KANAWHA. 

Wm.  Morris,  Jr., 
Thos.  Lewis. 


KING  GEORGE. 

Thos.  Turner, 
Gustavus  B.  Wallace. 

KING  WILLIAM.' 

Robt.  Pollard, 
Wm.  Gregory. 

LANCASTER. 

Martin  Shearman, 
Joseph  Carter. 


Burr  Powell, 
Saml.  Clapham. 


Wm.  O.  Callis, 
Thomas  Meriwether. 

LEE. 

David  Chadwell, 
Charles  Cooke. 

LUNENBURG. 

Francis  Epes, 
Wm.  Cowan. 

MATTHEWS. 

Holden  Hudgins, 
Zadock  Litchfield. 

MADISON. 

Robert  Roebuck, 
Henry  Hill. 

MECKLENBURG. 

John  Nelson, 
Mark  Alexander. 

MIDDLESEX. 

Wm.  Segar, 
Richard  H.  Corbin. 

MONONGALIA. 

John  Evans, 
David  Scott. 

MONTGOMERY. 

John  Ingles, 
James  Taylor. 

NANSEMOND. 

Willis  Riddick, 
Josiah  Riddick. 

NEW  KENT. 

James  Semple, 
John  D.  Watkins. 

NORFOLK. 

Josiah  Butt, 
James  S.  Matthews. 

NORTHAMPTON. 

John  Upshur, 
Nathl.  Darby. 


HOUSE  OF  DELEGATES,  1798-99. 


161 


NORTHUMBERLAND. 

Thomas  Hurst, 
Wm.  Claughton. 

NOTTOWAY. 

Freeman  Epes, 
James  Dupuy. 

OHIO. 

Archibald  Woods, 
Wm.  M'Kinley. 

ORANGE. 

James  Barbour, 
John  Wright. 

PITTSYLVANIA. 

Wm.  Clark, 
Robt.  Devin. 

POWHATAN. 

William  Moseley, 
Frederick  Woodson. 

PRINCE  EDWARD. 

Peter  Johnston, 
John  Purnall. 

PR1NCE.GEORGE. 

James  Cureton, 
Geo.  Keith  Taylor. 

PRINCE  WILLIAM. 

John  Pope, 
Edmund  Brooke. 

PRINCESS-ANNE. 

James  Robinson, 
Wm.Elligood. 

PENDLETON. 

Wm.  M'Coy, 

Jacob  Conrad. 

PATRICK. 

Joshua  Rentfro, 

Wm.  Carter. 

RANDOLPH. 

Wm.  Wilson, 
John  Hadden. 
RICHMOND. 
Richard  Barnes, 
George  Glasscock. 

ROCKBRIDGE. 

James  Caruthers, 
Andrew  Alexander. 


ROCKINGHAM. 

Walter  Davis, 
Charles  Lewis. 


Simon  Cockrell, 
Francis  Browning. 

SHENANDOAH. 

John  Gatewood, 
Wm.  H.  Dulaney. 

SOUTHAMPTON. 

Robert  Goodwyn, 
Wm.  Blow. 

SPOTTSYLVANIA. 

John  Mercer, 
Larkin  Starmard. 

STAFFORD. 

Nathaniel  Fox, 
John  Fox. 

SURRY. 

Nicholas  Faulcon, 
Canfield  Seward. 

SUSSEX. 

Robert  Boothe, 
John  R.  Mason. 

WARWICK. 
Richard  Gary, 
John  Burnham. 

WESTMORELAND. 

John  P.  Hungerford, 
Henry  Lee. 

WASHINGTON. 

James  Bradley, 
Samuel  Meek. 


Wm.  Drope, 
Saml.  Crockett. 

YORK. 

Samuel  Shield, 
Thos.  Griffin. 

RICHMOND  CITY. 

Wm.  Foushee. 

WILLIAMSBURG. 

Robert  Andrews. 

NORFOLK  BOROUGH. 

Thomas  Newton. 


SENATE. 


The  names  of  the  Senators,  as  far  as  concerns  the  subject  of  the  reso- 
lutions, appear  from  the  vote  already  stated. 


III. 

RESOLUTIONS  OF  KENTUCKY  LEGISLATURE. 


IN  THE  HOUSE  OF  REPRESENTATIVES, 

November  10th,  1798. . 

THE  House,  according  to  the  standing  order  of  the  day,  resolved  itself 
into  a  committee  of  the  whole  on  the  state  of  the  commonwealth,  Mr. 
Caldwell  in  the  chair ;  and  after  some  time  spent  therein,  the  Speaker  re- 
sumed the  chair,  and  Mr.  Caldwell  reported  that  the  committee  had,  ac- 
cording to  order,  had  under  consideration  the  Governor's  address,  and 
had  come  to  the  following  resolutions  thereupon,  which  he  delivered  in  at 
the  clerk's  table,  where  they  were  twice  read  and  agreed  to  by  the  House. 

1.  Resolved,  That  the  several  states  composing  the  United  States  of 
America,  are  not  united  on  the  principle  of  unlimited  submission  to  their 
general  government ;  but  that  by  compact,  under  the  style  and  title  of  a 
Constitution  for  the  United  States,  and  of  amendments  thereto,  they  con- 
stituted a  general  government  for  special   purposes,  delegated    to   that 
government  certain  definite  powers,  reserving,  each  state   to  itsjelf,  the 
residuary  mass  of  right  to  their  own  seTT-government ;  and  that  whenso- 
ever the  general  government  assumes  undelegated  powers,  its  acts  are 
unauthoritative,  void,  and  of  no  force :  That  to  this  compact  ejich  state 
acceded  as  a  state,  and  is  an  integral  party,  its  co-states  forming  as  to 
itself,  the  other  party :  That  the  government  created  .by  this  compact  was 
not  made  the  exclusive  or  final  judge  of  the  extent  of  the  powers  delegated 
to  itself;  since  that  would  have  made  its  discretion,  and  not  the  Constitu- 
tion, the  measure  of  its  powers  ;  but  that,  as  in  all  other  cases  of  compact 

,  among  parties  having  no  common  judge,  each  party  has  an  equal  right  to 
judge  for  itself,  'as  well  of  infractions,  as  of  the  mode  and  measure  of  re- 
dress. 

2.  Resolved,  That  the  Constitution  of  the  United  States  having  dele- 
gated to  Congress  a  power  to  punish  treason,  counterfeiting  the  securities 
and  current  coin  of  the  United  States,  piracies  and  felonies  committed  on 
the  high  seas,  and  offences  against  the  laws  of  nations,  and  no  other 
crimes  whatever,  and  it  being  true  as  a  general  principle,  and  one  of  the 


KENTUCKY  RESOLUTIONS.  163 

amendments  to  the  Constitution  having  also  declared,  "  that  the  powers 
not  delegated  to  the  United  States  by  the  Constitution,  nor  prohibited  by 
it  to  the  states,  are  reserved  to  the  states  respectively,  or  to  the  people ;" 
therefore,  also,  the  same  act  of  Congress,  passed  on  the  14th  day  of  July, 
1798,  and  entitled,  "an  act  in  addition  to  the  act  entitled,  an  act  for  the 
punishment  of  certain  crimes  against  the  United  States ;"  as  also  the  act 
passed  by  them  on  the  27th  day  of  June,  1798,  entitled, "  an  act  to  punish 
frauds  committed  on  the  Bank  of  the  United  States,"  (and  all  other  their 
acts  which  assume  to  create,  define,  or  punish  crimes  other  than  those 
enumerated  in  the  Constitution,)  are  altogether  void,  and  of  no  force,  and 
that  the  power  to  create,  define,  and  punish  such  other  crimes  is  reserved, 
and  of  right  appertains,  solely  and  exclusively,  to  the  respective  states,  each 
within  its  own  territory. 

3.  Resolved,  That  it  is  true  as  a  general  principle,  and  is  also  expressly 
declared  by  one  of  the  amendments  to  the  Constitution,  that  "  the  powers 
not  delegated  to  the  United  States  by  the  Constitution,  nor  prohibited  by 
it  to  the  states,  are  reserved  to  the  states  respectively,  or  to  the  people ;" 
and  that  no  power  over  the  freedom  of  religion,  freedom  of  speech,  or 
freedom  of  the  press,  being  delegated  to  the  United  States  by  the  Consti- 
tution, nor  prohibited  by  it  to  the  states,  all  lawful  powers  respecting  the 
same  did  of  right  remain,  and  were  reserved  to  the  states,  or  to  the  peo- 
ple ;  that  thus  was  manifested  their  determination  to  retain  to  themselves 
the  right  of  judging  how  far  the  licentiousness  of  speech  and  of  the  press 
may  be  abridged  without  lessening  their  useful  freedom,  and  how  far  those 
abuses  which  cannot  be  separated  from  their  use,  should  be  tolerated 
rather  than  the  use  be  destroyed ;  and  thus  also  they  guarded  against  all 
abridgment  by  the  United  States  of  the  freedom  of  religious  opinions  and 
exercises,  and  retained  to  themselves  the  right  of  protecting  the  same,  as 
this  state  by  a  law  passed  on  the  general  demand  of  its  citizens,  had 
already  protected  them  from  all  human  restraint  or  interference :  and  that 
in  addition  to  this  general  principle  and  express  declaration,  another  and 
more  special  provision  has  been  made  by  one  of  the  amendments  to  the 
Constitution, which  expressly  declares,  that  "  Congress  shall  make  no  law 
respecting  an  establishment  of  religion,  or  prohibiting  the  free  exercise 
thereof,  or  abridging  the  freedom  of  speech,  or  of  the  press,"  thereby 
guarding  in  the  same  sentence,  and  under  the  same  words,  the  freedom  of 
religion,  of  speech,  and  of  the  press,  insomuch,  that  whatever  violates 
either,  throws  down  the  sanctuary  which  covers  the  others,  and  that  libels, 
falsehoods,  and  defamations,  equally  with  heresy  and  false  religion,  are 
withheld  from  the  cognizance  of  federal  tribunals :  that  therefore  the  act 
of  the  Congress  of  the  United  States,  passed  on  the  14th  day  of  July, 
1798,  entitled,  "an  act  in  addition  to  the  act  for  the  punishment  of  cer- 
tain crimes  against  the  United  States,"  which  does  abridge  the  freedom  of 
the  press,  is  not  law,  but  is  altogether  void  and  of  no  effect. 

4.  Resolved,  That  alien-friends  are  under  the  jurisdiction  and  protec- 
tion of  the  laws  of  the  state  wherein  they  are ;  that  no  power  over  them 
has  been  delegated  to  the  United  States,  nor  prohibited  to  the  individual 
states  distinct  from  their  power  over  citizens;  and  it  being  true-as  a  gene- 
ral principle,  and  one  of  the  amendments  to  the  Constitution  having  also 


164  KENTUCKY  RESOLUTIONS. 

declared,  that  "  the  powers  not  delegated  to  the  United  States  by  the  Con- 
stitution,  nor  prohibited  by  it  to  the  states,  are  reserved  to  the  states  respec- 
tively, or  to  the  people,"  the  act  of  the  Congress  of  the  United  States, 
passed  on  the  22d  day  of  June,  1798,  entitled  "  an  act  concerning  aliens," 
which  assumes  power  over  alien-friends  not  delegated  by  the  Constitution, 
is  not  law,  but  is  altogether  void  and  of  no  force. 

5.  Resolved,  That  in  addition  to  the  general  principle  as  well  as  the 
express  declaration,  that  powers  not  delegated  are  reserved,  another  and 
more  special  provision  inserted  in  the  Constitution,  from  abundant  caution, 
has  declared,  "  that  the  migration  or  importation  of  such  persons  as  any 
of  the  states  now  existing  shall  think  proper  to  admit,  shall  not  be  pro- 
hibited by  the  Congress  prior  to  the  year  1808 :"  that  this  commonwealth 
does  admit  the  migration  of  alien-friends  described  as  the  subject  of  the 
said  act  concerning  aliens ;  that  a  provision  against  prohibiting  their 
migration,  is  a  provision  against  all  acts  equivalent  thereto,  or  it  would  be 
nugatory ;  that  to  remove  them  when  migrated,  is  equivalent  to  a  prohi- 
bition of  their  migration,  and  is  therefore  contrary  to  the  said  provision  of 
the  Constitution,  and  void. 

6.  Resolved,  That  the  imprisonment  of  a  person  under  the  protection 
of  the  laws  of  this  commonwealth,  on  his  failure  to  obey  the  simple  order 
of  the  President,  to  depart  out  of  the  United  States,  as  is  undertaken  by 
the  said  act,  entitled  "  an  act  concerning  aliens,"  is  contrary  to  the  Con- 
stitution, one  amendment  to  which  has  provided,  that  "  no  person  shall  be 
deprived  of  liberty  without  due  process  of  law,"  and  that  another  having 
provided,  "  that  in  all  criminal  prosecutions,  the  accused  shall  enjoy  the 
right  to  a  public  trial  by  an  impartial  jury,  to  be  informed  of  the  nature 
and  cause  of  the  accusation,  to  be  confronted  with  the  witnesses  against 
him,  to  have  compulsory  process  for  obtaining  witnesses  in  his  favour,  and 
to  have  the  assistance  of  counsel  for  his  defence,"  the  same  act  under- 
taking to  authorize  the  President  to  remove  a  person  out  of  the  United 
States,  who  is  under  the  protection  of  the  law,  on  his  own  suspicion,  with- 
out accusation,  without  jury,  without  public  trial,  without  confrontation  of 
the  witnesses  against  him,  without  having  witnesses  in  his  favour,  with- 
out defence,  without  counsel,  is  contrary  to  these  provisions,  also,  of  the 
Constitution,  is  therefore  not  law,  but  utterly  void  and  of  no  force. 

That  transferring  the  power  of  judging  any  person  who  is  under  the 
protection  of  the  laws,  from  the  courts  to  the  President  of  the  United 
States,  as  is  undertaken  by  the  same  act,  concerning  aliens,  is  against  the 
article  of  the  Constitution  which  provides,  that "  the  judicial  power  of  the 
United  States  shall  be  vested  in  courts,  the  judges  of  which  shall  hold  their 
offices  during  good  behaviour,"  and  that  the  said  act  is  void  for  that  rea-  - 
son  also ;  and  it  is  further  to  be  noted,  that  this  transfer  of  judiciary 
power  is  to  that  magistrate  of  the  General  Government,  who  already  pos- 
sesses all  the  executive,  and  a  qualified  negative  in  all  the  legislative 
powers. 

7.  Resolved^  That  the  construction  applied  by  the  General  Government, 
(as  is  evinced  by  sundry  of  their  proceedings,)  to  those  parts  of  the  Con- 
stitution of  the  United  States  which  delegates  to  Congress  a  power  to  lay 
and  collect  taxes,  duties,  imposts,  and  excises ;  to  pay  the  debts,  and  pro- 


KENTUCKY  RESOLUTIONS.  165 

vide  for  the  common  defence  and  general  welfare  of  the  United  States,  and 
to  make  all  laws  which  shall  be  necessary  and  proper  for  carrying  into 
execution  the  powers  vested  by  the  Constitution  in  the  Government  of  the 
United  States,  or  any  department  thereof,  goes  to  the  destruction- of  all  the 
limits  prescribed  to  their  power  by  the  Constitution :  that  words  meant  by 
that  instrument  to  be  subsidiary  only  to  the  execution  of  the  limited  powers, 
ought  not  to  be  so  construed  as  themselves  to  give  unlimited  powers,  nor 
a  part  so  to  be  taken,  as  to  destroy  the  whole  residue  of  the  instrument : 
that  the  proceedings  of  the  General  Government  under  colour  of  these 
articles,  will,  be  a  fit  and  necessary  subject  for  revisal  and  correction  at 
a  time  of  greater  tranquillity,  while  those  specified  in  the  preceding  reso- 
lutions call  for  immediate  redress. 

8,  Resolved,  That  the  preceding  resolutions  be  transmitted  to  the  sena- 
tors and  representatives  in  Congress  from  this  commonwealth,  who  are 
hereby  enjoined  to  present  the  same  to  their  respective  houses,  and  to  use 
their  best  endeavours  to  procure,  at  the  next  session  of  Congress,  a  repeal 
of  the  aforesaid  unconstitutional  and  obnoxious  acts. 

9.  Resolved,  lastly,  That  the  Governor  of  this  commonwealth  be,  and 
is  hereby  authorized  and  requested  to  communicate  the  preceding  resolu- 
tions to  the  legislatures  of  the  several  states,  to  assure  them  that  this  com- 
monwealth considers  union  for  specified  national  purposes,  and  particularly 
for  those  specified  in  their  late  federal  compact,  to  be  friendly  to  the 
peace,  happiness,  and  prosperity  of  all  the  states  :  that,  faithful  to  that  com- 
pact, according  to  the  plain  intent  and  meaning  in  which  it  was  understood 
and  acceded  to  by  the  several  parties,  it  is  sincerely  anxious  for  its  pre- 
servation :  that  it  does  also  believe,  that  to  take  from  the  states  all  the 
powers  of  self-government,  and  transfer  them  to  a  general  and  consolidated 
government,  without  regard  to  the  special  obligations  and  reservations 
solemnly  agreed  to  in  that  compact,  is  not  for  the  peace,  happiness  or 
prosperity  of  these  states :    and  that   therefore,  this   commonwealth    is"" 
determined,  as  it  doubts  not  its  co-states  are,  tamely  to  submit  to  undele-  j 
gated  and  consequently  unlimited  powers  in  no  man  or  body  of  men  on/ 
earth :  that  if  the  acts  before  specified  should  stand,  these  conclusions 
would  flow  from  them ;  that  the  general  government  may  place  any  act 
they  think  proper  on  the  list  of  crimes,  and  punish  it  themselves,  whether 
enumerated  or  not  enumerated  by  the  Constitution,  as  cognizable  by  them ; 
that  they  may  transfer  its  congnizance  to  the  President  or  any  other  per- 
son, who  may  himself  be  the  accuser,  counsel,  judge  and  jury,  whose 
suspicions  may  be  the  evidence,  his  order  the  sentence,  his  officer  the 
executioner,  and  his  breast  the  sole  record  of  the  transaction ;  that  a  very 
numerous  and  valuable  description  of  the  inhabitants  of  these  states  being, 
by  this  precedent,  reduced  as  outlaws  to  the  absolute  dominion  of  one  man, 
and  the  barrier  of  the  Constitution  thus  swept  away  from  us  all,  no  ram- 
part now  remains  against  the  passions  and  the  power  of  a  majority  of 
Congress,  to  protect  from  a  like  exportation  or  other  more  grievous  punish- 
ment the  minority  of  the  same  body,  the  legislatures,  judges,  governors, 
and  counsellors  of  the  states,  nor  their  other  peaceable  inhabitants  who 
may  venture  to  reclaim  the  constitutional  rights  and  liberties  of  the  states 
and  people,  or  who,  for  other  causes,  good  or  bad,  may  be  obnoxious  to 


166  KENTUCKY  RESOLUTIONS. 

the  views,  or  marked  by  the  suspicions  of  the  President,  or  be  thought 
dangerous  to  his  or  their  elections,  or  other  interests  public  or  personal : 
that  the  friendless  alien  has  indeed  been  selected  as  the  safest  subject  of  a 
first  experiment;  but  the  citizen  will  soon  follow,  or  rather  has  already 
followed;  for,  already  has  a  sedition-act  marked  him  as  its  prey:  that 
these  and  successive  acts  of  the  same  character,  unless  arrested  on  the 
threshold,  may  tend  to  drive  these  states  into  revolution  and  blood,  and 
will  furnish  new  calumnies  against  republican  governments,  and  new  pre- ' 
texts  for  those' who  wish  it  to  be  believed,  that  man  cannot  be  governed 
but  by  a  rod  of  iron:  that  it  would  be  a  dangerous  delusion,  were  a  con- 
fidence in  the  men  of  our  choice,  to  silence  our  fears  for  the  safety  of  our 
rights:  that  confidence  is  every  where  the  parent  of  despotism ;  free  govern-  X 
ment  is  founded  in  jealousy,  and  not  in  confidence  ;*it  is  jealousy  and  not 
confidence  which  prescribes  limited  constitutions  to  bind  down  those  whom 
we  are  obliged  to  trust  with  power:  that  our  Constitution  has  accordingly 
fixed  the  limits  to  which  and  no  further  our  confidence  may  go;  and  let 
the   honest  advocate  of  confidence  read  the  alien  and  sedition-acts,  and 
say  if  the  Constitution  has  not  been  wise  in  fixing  limits  to  the  govern- 
ment it  created,  and  whether  we  should  be  wise  in  destroying  those  limits'? 
Let  him  say  what  the  government  is  if  it  be  not  a  tyranny,  which  the  men 
of  our  choice  have  conferred  on  the  President,  and  the  President  of  our 
choice  has  assented  to  and  accepted,  over  the  friendly  strangers,  to  whom 
the  mild  spirit  of  our  country  and  its  laws  had  pledged  hospitality  and 
protection:  that  the  men  of  our  choice  have  more  respected  the  bare 
suspicions  of  the  President,  than  the  solid  rights  of  innocence,  the  claims 
of  justification,  the  sacred  force  of  truth,  and  the  forms  and  substance  of 
law  and  justice     In  questions  of  power,  then,  let  no  more  be  heard  of 
confidence  in  man,  but  bind  him  down  from  mischief,  by  the  chains  of  the 
Constitution.     That  this  commonwealth  does,  therefore,  call  on  its  co-states 
for  an  expression  of  their  sentiments  on  the  acts  concerning  aliens,  and 
for   the  punishment  of  certain    crimes   herein  before   specified,  plainly 
declaring  whether  these  acts  are  or  are  not  authorized  by  the  Federal 
compact.     And  it  doubts  not  that  their  sense  will  be  so  announced,  as  to 
prove  their  attachment  unaltered  to  limited  government,  whether  general 
or  particular,  and  that  the  rights  and  liberties  of  their  co-states,  will  be 
exposed  to  no  dangers  by  remaining  embarked  on  a  common  bottom  with 
their  own :  That  they  will  concur  with  this  commonwealth  in  considering 
the  said  acts  as  so  palpably  against  the  Constitution,  as  to  amount  to  an 
undisguised  declaration,  that  the  compact  is  not  meant  to  be  the  measure 
of  the  powers  of  the  general  government,  but  that  it  will  proceed  in  the 
exercise  over  these  states  of  all  powers  whatsoever :  That  they  will  view 
this  as  seizing  the  rights  of  the  states,  and  consolidating  them  in  the  hands 
of  the  general  government  with  a  power  assumed  to  bind  the  states,  (not 
merely  in  cases  made  federal,)  but  in  all  cases  whatsoever,  by  laws  made, 
not  with  their  consent,  but  by  others  against  their  consent :  That  this 
would  be  to  surrender  the  form  of  government  we  have  chosen,  and  to 
live  under  one  deriving  its  powers  from  its  own  will,  and  not  from  our 
authority;  and  that  the  co-states,  recurring  to  their  natural  right  in  cases 


KENTUCKY  RESOLUTIONS.  167 

not  made  federal,  will  concur  in  declaring  these  acts  void  and  of  no  force, 
and  will  each  unite  with  this  commonwealth,  in  requesting  their  repeal  at 
the  next  session  of  Congress. 

EDMUND  BULLOCK,  £  H.  R. 

JOHN  CAMPBELL,  S.  S.  P.  T. 

Passed  the  House  of  Representatives,  Nov.  10th,  1798. 
Attest, 

THOMAS  TODD,  C.  H.  R. 

In  Senate,  November  13th,  1798,  unanimously  concurred  in. 
Attest, 

B.  THRUSTON,  Clk.  Sen. 

Approved  November  16th,  1798. 

JAMES  GARRARD,  G.  K. 

By  the  Governor. 

HARRY  TOULMIN, 

Secretary  of  State. 


IV. 

COUNTER.RESOLUTIONS  OF  OTHER  STATES 

IN  RESPONSE  TO  THOSE  OF  VIRGINIA,  &c. 


STATE  OF  DELAWARE. 
IN  THE  HOUSE  OF  REPRESENTATIVES, 

February  1,  1799. 

.  Resolved,  By  the  Senate  and  House  of  Representatives  of  the  state  of 
Delaware,  in  General  Assembly  met,  That  they  consider  the  resolutions 
from  the  state  of  Virginia,  as  a  very  unjustifiable  interference  with  the 
general  government  and  constituted  authorities  of  the  United  States,  and 
of  dangerous  tendency,  and  therefore  not  a  fit  subject  for  the  further  con- 
sideration of  the  General  Assembly. 

ISAAC  DAVIS, 

Speaker  of  Senate. 


STEPHEN  LEWIS, 
Speaker  of  House  of  Representatives. 


Test, 


JOHN  FISHER, 

Clerk  of  Senate. 
JOHN  CALDWELL, 

Clerk  of  House  of  Representatives. 

Resolved,  That  the  above  resolutions  be  signed  by  the  Speaker  of  the 
Senate,  and  by  the  Speaker  of  the  House  of  Representatives ;  and  that  the 
Governor  of  this  state  be  requested  to  forward  the  same  to  the  Governor 
of  the  state  of  Virginia. 

JOHN  FISHER, 
Clerk  of  Senate. 

JOHN  CALDWELL,  • 
Clerk  of  House  of  Representatives. 


COUNTER-RESOLUTIONS. RHODE  ISLAND.  169 


STATE  OF  RHODE  ISLAND  AND  PROVIDENCE 
PLANTATIONS. 

IN  GENERAL  ASSEMBLY, 

February,  A.  D.  1799. 

Certain  resolutions  of  the  legislature  of  Virginia,  passed  on  the 
twenty-first  day  of  December  last,  being  communicated  to  this  Assembly, 

1.  Resolved,  That  in  the  opinion  of  this  legislature,  the  second  section 
of  the  third  article  of  the  Constitution  of  the  United  States,  in  these  words, 
to  wit :    The  judicial  power  shall  extend  to  all  cases  arising  under  the 
laws  of  tlie  United  States,  vests  in  the  federal  courts  exclusively,  and  in 
the  Supreme  Court  of  the  United  States  ultimately,  the  authority  of  deci- 
ding on  the  constitutionality  of  any  act  or  law  of  the  Congress  of  the 
United  States. 

2.  Resolved^  That  for  any  state  legislature  to  assume  that  authority 
would  be, 

1st.  Blending  together  legislative  and  judicial  powers. 

2d.  Hazarding  an  interruption  of  the  peace  of  the  states  by  civil  dis- 
cord, in  case  of  a  diversity  of  opinions  among  the  state  legislatures ;  each 
state  having,  in  that  case,  no  resort  for  vindicating  its  own  opinion,  but  to 
the  strength  of  its  own  arm. 

3d.  Submitting  most  important  questions  of  law,  to  less  competent  tri- 
bunals ;  and 

4th.  An  infraction  of  the  Constitution  of  the  United  States,  expressed  in 
plain  terms. 

3.  Resolved^  That  although,  for  the  above  reasons,  this  legislature,  in 
their  public  capacity,  do  not  feel  themselves  authorized  to  consider  and 
decide  on  the  constitutionality  of  the  sedition  and  alien-laws  (so  called), 
yet  they  are  called  upon  by  the  exigency  of  this  occasion,  to  declare,  that 
in  their  private  opinions,  these  laws  are  within  the  powers  delegated  to 
Congress,  and  promotive  of  the  welfare  of  the  United  States. 

4.  Resolved^  That  the  Governor  communicate  these  resolutions  to  the 
supreme  executive  of  the  state  of  Virginia,  and,  at  the  same  time,  express 
to  him,  that  this  legislature  cannot  contemplate,  without  extreme  concern 
and  regret,  the  many  evil  and  fatal   consequences  which  may  flow  from 
the  very  unwarrantable  resolutions  aforesaid  of  the  legislature  of  Virginia, 
passed  on  the  twenty-first  day  of  December  last. 

A  true  copy, 

SAMUEL  Eooy, 

Secretary. 


170  COUNTER-RESOLUTIONS. MASSACHUSETTS. 

COMMONWEALTH  OF  MASSACHUSETTS. 
IN  SENATE, 

February  9, 1799. 

The  Legislature  of  Massachusetts,  having  taken  into  serious  considera- 
the  resolutions  of  the  state  of  Virginia,  passed  the  21st  day  of  December 
last,  and  communicated  by  his  excellency  the  Governor,  relative  to  certain 
supposed  infractions  of  the  Constitution  of  thd  United  States,  by  the  go- 
vernment thereof,  and  being  convinced  that  the  Federal  Constitution  is 
calculated  to  promote  the  happiness,  prosperity  and  safety  of  the  people  of 
these  United  States,  and  to  maintain  that  union  of  the  several  states,  so 
essential  to  the  welfare  of  the  whole ;  and,  being  bound  by  solemn  oath 
to  support  and  defend  that  Constitution,  feel  it  unnecessary  ,to  make  any 
professions  of  their  attachment  to  it,  or  of  their  firm  determination  to  sup- 
port it  against  every  aggression,  foreign  or  domestic. 

But  they  deem  it  their  duty  solemnly  to  declare,  that  while  they  hold 
sacred  the  principle,  that  the  consent  of  the  people  is  the  only  pure  source 
of  just  and  legitimate  power,  they  cannot  admit  the  right  of  the  state  legis- 
latures to  denounce  the  administration  of  that  government  to  which  the 
people  themselves,  by  a  solemn  compact,  have  exclusively  committed  their 
national  concerns:  That,  although  a  liberal  and  enlightened  vigilance 
among  the  people  is  always  to  be  cherished,  yet  an  unreasonable  jealousy 
of  the  men  of  their  choice,  and  a  recurrence  to  measures  of  extremity, 
upon  groundless  or  trivial  pretexts,  have  a  strong  tendency  to  destroy  all 
rational  liberty  at  home,  and  to  deprive  the  United  States  of  the  most 
essential  advantages  in  their  relations  abroad :  That  this  Legislature  are 
persuaded,  that  the  decision  of  all  cases  in  law  and  equity,  arising  under 
the  Constitution  of  the  United  States,  and  the  construction  of  all  laws 
made  in  pursuance  thereof,  are  exclusively  vested  by  the  people  in  the 
judicial  courts  of  the  United  States. 

That  the  people  in  that  solemn  compact,  which  is  declared  to  be  the 
supreme  law  of  the  land,  have  not  constituted  the  state  legislatures  the 
judges  of  the  acts  or  measures  of  the  Federal  Government,  but  have  con- 
fided to  them  the  power  of  proposing  such  amendments  of  the  Constitution, 
as  shall  appear  to  them  necessary  to  the  interests,  or  conformable  to  the 
wishes  of  the  people  whom  they  represent. 

That  by  this  construction  of  the  Constitution,  an  amicable  and  dispas- 
sionate remedy  is  pointed  out  for  any  evil  which  experience  may  prove  to 
exist,  and  the  peace  and  prosperity  of  the  United  States  may  be  preserved 
without  interruption. 

But,  should  the  respectable  state  of  Virginia  persist  in  the  assumption  of 
the  right  to  declare  the  acts  of  the  national  government  unconstitutional, 
and  should  she  oppose  successfully  her  force  and  will  to  those  of  the 
nation,  the  Constitution  would  be  reduced  to  a  mere  cypher,  to  the  form 
and  pageantry  of  authority,  without  the  energy  of  power.  Every  act  of 


COUNTER-RESOLUTIONS, MASSACHUSETTS.  17  1 

the  Federal  Government  which  thwarted  the  views,  or  checked  the  ambi- 
tious projects  of  a  particular  state,  or  of  its  leading  and  influential  mem- 
bers, would  be  the  object  of  opposition  and  of  remonstrance;  while  the 
people,  convulsed  and  confused  by  the  conflict  between  two  hostile  juris- 
dictions, enjoying  the  protection  of  neither,  would  be  wearied  into  a  sub- 
mission to  some  bold  leader,  who  would  establish  himself  on  the  ruins  of 
both. 

The  Legislature  of  Massachusetts,  although  they  do  not  themselves 
claim  the  right,  nor  admit  the  authority,  of  any  of  the  state  governments 
to  decide  upon  the  constitutionality  of  the  acts  of  the^Federal  Govern- ' 
ment,  still,  lest  their  silence  should  be  construed  into  disapprobation,  or 
at  best  into  a  doubt  of  the  constitutionality  of  the  acts  referred  to  by  the 
state  of  Virginia ;  and,  as  the  General  Assembly  of  Virginia  has  called 
for  an  expression  of  their  sentiments,  do  explicitly  declare,  that  they  con- 
sider the  acts  of  Congress,  commonly  called  "  the  alien  and  sedition-acts," 
not  only  constitutional,  but  expedient  and  necessary  :  That  the  former  act 
respects  a  description  of  persons  whose  rights  were  not  particularly  con- 
templated in  the  Constitution  of  the  United  States,  who  are  entitled  only 
to  a  temporary  protection,  while  they  yield  a  temporary  allegiance :  a  pro- 
tection, which  ought  to  be  withdrawn  whenever  they  become  "  dangerous 
to  the  public  safety,"  or  are  found  guilty  of  "treasonable  machinations" 
against  the  government :  That  Congress  having  been  especially  entrusted 
by  the  people  with  the  general  defence  of  the  nation,  had  not  only  the 
right  but  were  bound  to  protect  it  against  internal,  as  well  as  external 
foes. 

That  the  United  States,  at  the  time  of  passing  the  act  concerning  aliens, 
were  threatened  with  actual  invasion,  had  been  driven  by  the  unjust  and 
ambitious  conduct  of  the  French  government  into  warlike  preparations, 
expensive  and  burdensome,  and  had  then,  within  the  bosom  of  the  country, 
thousands  of  aliens,  who,  we  doubt  not,  were  ready  to  co-operate  in  any 
external  attack. 

It  cannot  be  seriously  believed,  that  the  United  States  should  have 
waited  till  the  poniard  had  in  fact  been  plunged.  The  removal  of  aliens 
is  the  usual  preliminary  of  hostility,  and  is  justified  by  the  invariable 
usages  of  nations.  Actual  hostility  had  unhappily  long  been  experienced, 
and  a  formal  declaration  of  it  the  government  had  reason  daily  to  expect. 
The  law,  therefore,  was  just  and  Salutary,  and  no  officer  could,  with  so 
much  propriety  be  entrusted  with  the  execution  of  it,  as  the  one  in  whom 
the  Constitution  has  reposed  the  executive  power  of  the  United  States. 

The  sedition-act,  so  called,  is,  in  the  opinion  of  this  Legislature,  equally 
defensible.  The  General  Assembly  of  Virginia,  in  their  resolve  under 
consideration,  observe,  that  when  that  state,  by  its  convention,  ratified  the 
Federal  Constitution,  it  expressly  declared,  "  That,  among  other  essential 
rights,  the  liberty  of  conscience  and  of  the  press  cannot  be  cancelled, 
abridged,  restrained  or  modified  by  any  authority  of  the  United  States," 
and  from  its  extreme  anxiety  to  guard  these  rights  from  every  possible 
attack  of  sophistry  or  ambition,  with  other  states,  recommended  an  amend- 
ment for  that  purpose;  which  amendment  was,  in  due  time,  annexed  to 
the  Constitution  ;  but  they  did  not  surely  expect  that  the  proceedings  of 


COUNTER-RESOLUTIONS. MASSACHUSETTS.  173 

The  President  of  the  United  States  is  bound  by  his  oath  "  to  preserve, 
protect,  and  defend  the  Constitution,"  and  it  is  expressly  made  his  duty 
"to  take  care  that  the  laws  be  faithfully  executed ;"  but  this  would  be 
impracticable  by  any  created  being,  if  there  could  be  no  legal  restraint  of 
those  scandalous  misrepresentations  of  his  measures  and  motives,  which 
directly  tend  to  rob  him  of  the  public  confidence.  And  equally  impo- 
tent would  be  every  other  public  officer,  if  thus  left  to  the  mercy  of  the 
seditious. 

It  is  holden  to  be  a  truth  most  clear,  that  the  important  trusts  before 
enumerated,  cannot  be  discharged  by  the  government  to  which  they  are 
committed,  without  the  power. to  restrain  or  punish  seditious  practices  and 
unlawful  combinations  against  itself,  and  to  protect  the  officers  thereof 
from  abusive  misrepresentations.  HacL  the  Constitution  withheld  this 
power,  it  would  have  made  the  government  responsible  for  the  effects, 
without  any  control  over  the  causes  which  naturally  produce  them,  and 
would  have  essentially  failed  of  answering  the  great  ends  for  which  the 
people  of  the  United  States  declare,  in  the  first  clause  of  that  instrument, 
that  they  establish  the  same,  viz :  "  To  form  a  more  perfect  union,  esta- 
blish justice,  insure  domestic  tranquillity,  provide  for  the  common  defence, 
promote  the  general  welfare,  and  secure  the  blessings  of  liberty  to  our- 
selves and  posterity." 

Seditious  practices  and  unlawful  combinations  against  the  federal  govern- 
ment, or  any  officer  thereof,  in  the  performance  of  his  duly,  as  well  as 
licentiousness  of  speech  and  of  the  press,  were  punishable  on  the  prin- 
ciples of  common  law  in  the  courts  of  the  United  States,  before  the  act  in 
question  was  passed.  This  act,  then,  is  an  amelioration  of  that  law  in 
favour  of  the  party  accused,  as  it  mitigates  the  punishment  which  that 
authorizes,  and  admits  of  any  investigation  of  public  men  and  measures 
which  is  regulated  by  truth.  It  is  not  intended  to  protect  men  in  office, 
only  as  they  are  agents  of  the  people.  Its  object  is  to  afford  legal  security 
to  public  offices  and  trusts  created  for  the  safety  and  happiness  of  the 
people,  and  therefore  the  security  derived  from  it  is  for  the  benefit  of  the 
people,  and  is  their  right. 

This  construction  of  the  Constitution,  and  of  the  existing  law  of  the 
land,  as  well  as  the  act  complained  of,  the  legislature  of  Massachusetts 
most  deliberately  and  firmly  believe,  results  from  a  just  and  full  view  of 
the  several  parts  of  that  Constitution ;  and  they  consider  that  act  to  be 
wise  and  necessary,  as  an  audacious  and  unprincipled  spirit  of  falsehood 
and  abuse  had  been  too  long  unremittingly  exerted  for  the  purpose  of  per- 
verting public  opinion,  and  threatened  to  undermine  and  destroy  the  whole 
fabric  of  the  government. 

The  legislature  further  declare,  that  in  the  foregoing  sentiments  they 
have  expressed  the  general  opinion  of  their  constituents,  who  have  not 
only  acquiesced  without  complaint  in  those  particular  measures  of  the 
federal  government,  but  have  given  their  explicit  approbation  by  re-elect- 
ing those  men  who  voted  for  the  adoption  of  them  :  nor  is  it  apprehended, 
that  the  citizens  of  this  state  will  be  accused  of  supineness,  or  of  an  indif- 
ference to  their  constitutional  rights ;  for,  while  on  the  one  hand,  they 
regard  with  due  vigilance,  the  conduct  of  the  government :  on  the  other, 


174  COUNTER-RESOLUTIONS. NEW  YORK. 

their  freedom,  safety,  and  happiness  require,  that  they  should  defend  that 
government  and  its  constitutional  measures  against  the  open  or  insidious 
attacks  of  any  foe,  whether  foreign  or  domestic. 

And  lastly,  that  the  Legislature  of  Massachusetts  feel  a  strong  convic- 
tion, that  the  several  United  States  are  connected  by  a  common  interest, 
which  ought  to  render  their  union  indissoluble,  and  that  this  state  will 
always  co-operate  with  its  confederate  states,  in  rendering  that  union  pro- 
ductive of  mutual  security,  freedom  arrd  happiness. 
Sent  down  for  concurrence. 

SAMUEL  PHILIPS,  President. 

In  the  House  of  Representatives,  Feb.  13, 1799.     Read  and  concurred. 

EDWARD  ROBBINS,  Speaker. 
A  true  copy. 

Attest,  JOHN  AVERY,  Secretary. 


STATE  OF  NEW  YORK. 

IN    SENATE, 
March  5,  1799. 

Whereas  the  people  of  the  United  States  have  established  for  them- 
selves a  free  and  independent  national  government.  And  whereas  it  is 
essential  to  the  existence  of  every  government,  that  it  have  authority  to 
defend  and  preserve  its  constitutional  powers  inviolate,  inasmuch  as 
every  infringement  thereof  tends  to  its  subversion.  And  whereas  the 
judicial  power  extends  expressly  to  all  cases  of  law  and  equity  arising 
under  the  Constitution  and  the  laws  of  the  United  States,  whereby  the 
interference  of  the  legislatures  of  the  particular  states  in  those  cases,  is 
manifestly  excluded.  And  whereas  our  peace,  prosperity,  and  happiness 
eminently  depend  en  the  preservation  of  the  Union,  in  order  to  which,  a 
reasonable  confidence  in  the  constituted  authorities  and  chosen  representa- 
tives of  the  people  is  indispensable.  And  wherea-s  every  measure  calcu- 
lated to  weaken  that  confidence,  has  a  tendency  to  destroy  the  usefulness 
of  our  public  functionaries,  and  to  excite  jealousies  equally  hostile  to 
rational  liberty  and  the  principles  of  a  good  republican  government.  And 
whereas  the  Senate,  not  perceiving  that  the  rights  of  the  particular  states 
have  been  violated,  nor  any  unconstitutional  powers  assumed  by  the  gene- 
ral government,  cannot  forbear  to  express  the  anxiety  and  regret  with 
which  they  observe  the  inflammatory  and  pernicious  sentiments  and  doc- 
trines which  are  contained  in  the  resolutions  of  the  legislatures  of  Virginia 
and  Kentucky ;  sentiments  and  doctrines  no  less  repugnant  to  the  Constitu- 
tion of  the  United  States,  and  the  principles  of  their  union,  than  destructive 
to  the  Federal  Government,  and  unjust  to  those  whom  the  people  have 
elected  to  administer  it :  wherefore, 


COUNTER-RESOLUTIONS. CONNECTICUT.  175 

Resolved,  That  while  the  Senate  feel  themselves  constrained  to  bear 
unequivocal  testimony  against  such  sentiments  and  doctrines,  they  deem 
it  a  duty  no  less  indispensable,  explicitly  to  declare  their  incompetency,  as 
a  branch  of  the  legislature  of  this  state,  to  supervise  the  acts  of  the  general 
government. 

Resolved,  That  his  excellency  the  Governor  be,  and  he  is  hereby 
requested  to  transmit  a  copy  of  the  foregoing  resolution  to  the  executives 
of  the  states  'of  Virginia  and  Kentucky,  to  the  end  that  the  same  may  be 
communicated  to  the  legislatures  thereof. . 

A  true  copy,  ABM.  B.  BAUCKER,  Clerk. 


STATE  OF  CONNECTICUT. 

At  a  general  assembly  of  the  state  of  Connecticut,  holden  at  Hartford, 
in  the  said  state,  on  the  second  Thursday  of  May,  Anno  Domini,  1799, 
his  excellency  the  Governor  having  communicated  to'this  Assembly  sundry 
resolutions  of  the  legislature  of  Virginia,  adopted  in  December  1798, 
which  relate  to  the  measures  of  the  general  government,  and  the  said 
resolutions  having  been  considered,  it  is 

Resolved,  That  this  Assembly  views  with  deep  regret,  and  explicitly 
disavows,  the  principles  contained  in  the  aforesaid  resolutions ;  and  par- 
ticularly the  opposition  to  the  "  alien  and  sedition-acts,"  acts,  which  the 
Constitution  authorized ;  which  the  exigency  of  the  country  rendered 
necessary ;  which  the  constituted  authorities  have  enacted,  and  which 
merit  the  entire  approbation  of  this  Assembly.  They  therefore  decidedly 
refuse  to  concur  with  the  legislature  of  Virginia,  in  promoting  any  of  the 
objects  attempted  in  the  aforesaid  resolutions. 

And  it  is  further  Resolved,  that  his  excellency  the  Governor  be  requested 
to  transmit  a  copy  of  the  foregoing  resolution  to  the  Governor  of  Virginia, 
that  it  may  be  communicated  to  the  legislature  of  that  state. 

Passed  in  the  House  of  Representatives  unanimously. 
Attest, 

JOHN  C.  SMITH,  Clerk. 

Concurred  unanimously,  in  the  upper  House. 
Teste, 

SAMUEL  WYLLYS,  Secretary. 


176  COUNTER-RESOLUTIONS. NEW  HAMPSHIRE. 


STATE  OF  NEW  HAMPSHIRE. 

IN  THE  HOUSE  OF  REPRESENTATIVES, 
June  14,  1799. 

The  committee  to  take  into  consideration  the  resolutions  of  the  General 
Assembly  of  Virginia,  dated  December  21st,  1798 ;  also  certain  resolu- 
tions of  the  Legislature  of  Kentucky,  of  the  10th  Novem'ber,  1798,  report 
as  follows : 

The  Legislature  of  New  Hampshire  having  taken  into  consideration 
certain  resolutions  of  the  General  Assembly  of  Virginia,  dated  December 
21,  1798 ;  also  certain  resolutions  of  the  Legislature  of  Kentucky,  of  the 
10th  of  November,  1798: 

Resolved,  That  the  Legislature  of  New  Hampshire  unequivocally  ex- 
press a  firm  resolution  to  maintain  and  defend  the  Constitution  of  the 
United  States,  and  the  Constitution  of  this  state,  against  every  aggression, 
either  foreign  or  domestic,  and  that  they  will  support  the  government  of 
the  United  States  in  all  measures  warranted  by  the  former. 

That  the  state  legislatures  are  not  the  proper  tribunals  to  determine 
the  constitutionality  of  the  laws  of  the  general  government,  that  the 
duty  of  such  decision  is  properly  and  exclusively  confided  to  the  judicial 
department. 

That  if  the  Legislature  of  New  Hampshire,  for  mere  speculative  pur- 
poses, were  to  express  an  opinion  on  the  acts  of  the  general  government, 
commonly  called  "  the  alien  and  sedition-bills,"  that  opinion  would  unre- 
servedly be,  that  those  acts  are  constitutional,  and  in  the  present  critical 
situation  of  our  country,  highly  expedient. 

That  the  constitutionality  and  expediency  of  the  acts  aforesaid,  have 
been  very  ably  advocated  and  clearly  demonstrated  by  many  citizens  of 
the  United  States,  more  especially  by  the  minority  of  the  General  As- 
sembly of  Virginia.  The  Legislature  of  New  Hampshire,  therefore,  deem 
it  unnecessary,  by  any  train  of  arguments,  to  attempt  further  illustration 
of  the  propositions,  the  truth  of  which,  it  is  confidently  believed,  at  this 
day,  is  very  generally  seen  and  acknowledged. 

Which  report  being  read  and  considered,  was  unanimously  received  and 
accepted,  one  hundred  and  thirty-seven  members  being  present. 
Sent  up  for  concurrence. 

JOHN  PRENTICE,  Speaker. 

In  Senate,  the  same  day,  read  and  concurred  unanimously. 

AMOS  SHEPARD,  President. 

Approved,  June  15th,  1799. 

J.  T.  GILMAN,  Governor. 
A  true^opy. 

Attest, 

JOSEPH  PEARSON,  Secretary. 


COUNTER-RESOLUTIONS. VERMONT.  177 

STATE  OF  VERMONT. 

IN  THE  HOUSE  OF  REPRESENTATIVES, 
October  30th,  A.  D.  1799. 

THE  House  proceeded  to  take  under  their  consideration,  the  resolutions 
of  the  General  Assembly  of  Virginia,  relative  to  certain  measures  of  the 
general  government,  transmitted  to  the  Legislature  of  this  state,  for  their 
consideration :  Whereupon, 

Resolved,  That  the  General  Assembly  of  the  state  of  Vermont  do  highly 
disapprove  of  the  resolutions  of  the  General  Assembly  of  Virginia,  as 
being  unconstitutional  in  their  nature,  and  dangerous  in  their  tendency. 
It  belongs  not  to  state  legislatures  to  decide  on  the  constitutionality  of  laws 
made  by  the  general  government ;  this  power  being  exclusively  vested  in 
the  judiciary  courts  of  the  Union  :  That  his  excellency  the  Governor  be 
requested  to  transmit  a  Copy  of  this  resolution  to  the  executive  of  Virginia, 
to  be  communicated  to  the  General  Assembly  of  that  state :  And  that  the 
same  be  sent  to  the  Governor  and  Council  for  their  concurrence. 

SAMUEL  C.  CRAFTS,  Clerk. 

In  Council,  October  30, 1799. 

Read  and  concurred  unanimously. 

RICHARD  WHITNEY,  Secretary. 


12 


y. 

VIRGINIA   REPORT  OF  1799, 

AND  ANALYSIS  THEREOF. 


ANALYSIS    OF   REPORT. 


WAIVING  objections  to  the  spirit  and  manner  of  the  counter-resolutions 
of  other  states,  the  Report  proceeds  to  discuss  the  resolutions  of  21st 
December,  1798,  seriatim. 

1st  Resolution.  To  maintain  and  defend  the  Constitution  of  the  United 
States,  &c. 

Not  liable  to  objection. 
2d  Resolution.  To  oppose  every  infraction  of  the  Constitution,  &c. 

Not  liable  to  objection. 

3d  Resolution.  That  the  powers  of  the  Federal  Government  result  from 
the  compact,  to  which  the  states  are  parties:  That  those  powers 
are  limited  by  the  plain  sense  and  intention  of  the  instrument  of  com- 
pact :  And  that  it  is  the  duty  of  the  states  to  interpose  to  arrest  the 
deliberate,  palpable,  and  dangerous  exercise  of  powers  not  granted  ; 
wherein  consider, 
I.  The  truth  of  the  several  propositions  affirmed :  viz.,  that, 

1.  The  powers  of  the  Federal  Government  result  from  the  compact, 
or  Constitution ;  wherein  of, 

1.  The  contemporary  discussions  when  the  Constitution  was  sub- 
mitted to  the  people  of  the  states  for  their  ratification. 

2.  The  12th  amendment  to  the  Constitution. 

2.  The  states  are  parties  to  the  compact,  or  Constitution  :  wherein  of, 

1.  The  different  senses  of  the  word  states,  and  the  meaning  as 
here  used. 

2.  The  sense  in  which  the  Constitution  was  submitted  to,  and 
ratified  by  the  states. 


ANALYSIS  OF  REPORT.  179 

3.  The  powers  are  limited   by  the  plain  sense  and  intention  of  the 
instrument  of  compact ;  wherein  consider  that, 

1.  The  powers  granted  are  valid  only  because  granted. 

2.  The  powers  not  granted,  are  not  valid. 

4.  The  states,  as  sovereign  parties  to  the  compact,  must  construe  it  in 
the  last  resort,  and  decide  if  it  be  violated ;  wherein  consider  that, 

1.  There  can  be  no  tribunal  superior  to  the  states,  in  the  last  resort, 
they  being  sovereign. 

2.  The  federal  judiciary  cannot  be  the  final  expositor  of  the  Consti- 
tution, except  in  relation  to  the  other  departments  of  the  govern- 
ment ;  because, 

1.  Some  usurpations,  by  the  forms  of  the  Constitution,  cannot  be 
drawn  within  its  control. 

2.  The  decisions  of  the  other  departments,  in  cases  not  subject  to 
judicial  cognizance,  would  be  equally  authoritative  and  final. 

3.  The    usurpations   sanctioned,  or  committed,  by  the  judiciary 
would  be  irremediable. 

5.  The  cases  for  interposition  by  the  states ; — only  where  the  violation, 
by  the  United  States,  is 

1.  Deliberate. 

2.  Palpable. 

3.  Dangerous. 

6.  The  object  of  the  interposition  : 

To  arrest  the  progress  of  usurpation,  and  maintain  the  authorities, 

rights,  and  liberties  appertaining  to  the  states. 
II.  The  expediency  of  declaring  the  truths  aforesaid;  wherein  of 

1.  The  general  importance  of  recurrence  to  fundamental  principles. 

2.  The  particular  importance  in  view  of  the  political  doctrines  of  the 
day. 

\ih  Resolution.  That  a  spirit  has  been  manifested  to  enlarge  the  powers 
of  the  Federal  Government,  by  forced  constructions,  especially  of 
certain  general  phrases  ;  of  which  the  effect  will  be  to  consolidate  the 
states  into  one  sovereignty,  and  the  result  a  monarchy ;  wherein  of 
the  affirmation — 

I.  That  a  spirit  has  been  manifested  by  the  Federal  Government  to 
enlarge  its  powers  by  forced  constructions  of  the  Constitution ;  whereof 
the  instances  are  (amongst  others), 

1.  The  Bank-law  of  1791. 

2.  The  Carriage-tax  law  of  1794. 

3.  The  Alien  and  Sedition  laws. 

II.  That  indications  have  appeared  of  a  design  to  expound  certain  gene- 
ral phrases,  [which  although  substantially  contained  in  the  former 
Articles  of  Confederation,  were  never  therein  so  misconstrued,]  so  as 
to  destroy  the  effect  of  the  particular  enumeration  which  explains 
and  limits  those  phrases ;  wherein  of 

1.  What  general  phrases  are  referred  to, — 

Those  which  relate  to  a  provision  "  for  the  common  defence  and 
general  welfare,"  &c. — Articles  of  Confederation,  Art.  VIII. 


180  ANALYSIS  OF  REPORT. 

2.  The  meaning  attached  to  them,  in  the  Articles  of  Confederation. 
III.  Instances  of  a  design  so  to  expound   those  phrases  as  to  destroy 
the  effect  of  the  particular  enumeration  of  powers  ;  wherein  consider, 

1.  What  the  instances  are, 

1.  Debates  in  Congress. 

2.  Hamilton's    Report   on    Manufactures,    5th  December,   1791, 
wherein  he  supposes  everything  in  the  power  of  Congress,  which 

»       concerns  the  general  welfare,  and  involves  the  application  of 
money. 

3.  Report  of  Committee  of  House  of  Representatives  on  Agricul- 
ture, January,  1797 ;  proposing  an  Agricultural  Society  under 
the  direction  of  the  Federal  Government. 

2.  The  result  of  such  exposition  to  destroy  the  effect  of  the  particular 
enumeration  of  powers ;  for, 

1.  No  power  of  importance,  but  may  involve  the  application  of 
money.  4 

2.  It  is  no  limitation  of  the  power  to  confine  it  to  cases  affecting 
the  general  welfare,  because  all  cases  may  be  said  to  do  so. 

3.  The  proper  construction  of  the  phrases — 

To  limit  the  Federal  Government  to  those  modes  of  promoting 
the  general  welfare  which  are  afterwards  specified. 

3.  The  tendency  of  such  exposition  of  the  general  phrases  in  ques- 
tion to  consolidate  the  states  into  one  sovereignty. 

4.  The  result  of  such  consolidation,  a  monarchy  ;  by, 

1.  Enlarging  the  Executive  power  as  a  supplement  to  the  deficiency 
of  laws,  which  would  be  greater  as  the  objects  of  legislative 
attention  were  multiplied. 

2.  Increasing  the  offices,  honours,  and  emoluments  depending  on 
the  Executive  will,  and  thereby  enabling  the  chief  magistrate  to 
secure  his  own  re-election  from  time  to  time,  and  to  regulate  the 
succession. 

3.  Rendering  the  Executive  office  such  an  object  of  ambition  as  to 
make  elections  so  tumultuous  and  corrupt,  that  the  people  would 
themselves  demand  an  hereditary  succession. 

5th  Resolution.  Protests  particularly,  against  the  Alien  and  Sedition-Acts, 
as    palpable   and   alarming   infractions   of  the   Constitution,    &c. ; 
wherein  consider, 
I.  THE  ALIEN  ACT  : — Of  which  it  is  said  that, 

1.  It  exercises  a  power  not  delegated  by  the  Constitution;  wherein  of 
1.  Some  preliminary  observations. 

1»  The  Federal  Government  possesses  only  delegated  powers;  and 
those  not  delegated  to  it  are  reserved  to  the  states  respectively, 
or  to  the  people.  Hence  any  power  exercised,  must  appear  to 
be  granted  by  the  Constitution. 

.     2.  Distinguish   between   alien  enemies,  over   whom   the  Federal 
authority,  as  incident  to  the  power  of  making  war,  is  complete; 
and  alien  friends,  to  whom  it  is  denied  that  its  power  extends. 
.  3.  Even  if  the  "Alien-Act"  contemplated  preventive,  only,  and 


ANALYSIS  OP  REPORT.  181 

not  penal  justice,  and  if  the  former  were  within  the  power  of 
Congress,  (which  is  denied,)  yet  such  preventive  justice  has  not 
been  exercised  in  a  constitutional  manner.  Because  the  princi- 
ples of  the  only  preventive  justice  known  to  American  jurispru* 
dence,  require, 

1.  That  some  probable  ground  of  suspicion  be  exhibited  to  some 
judicial  authority ;  the  act  refers  it  to  the  President. 

2.  That  it  be  supported  by  oath  or  affirmation ;  the  act  requires 
none. 

3.  That  the  party  may  avoid  imprisonment  by  pledges  of  legal 
•     conduct,  sufficient  in  the  judgment  of  some  judicial  authority ; 

the  act  denies  this  privilege,  or  refers  it  to  the  discretion  of 
the  President. 

4.  The  party  may  have  a  writ  of  habeas  corpus  if  wrongfully 
confined ;  the  act  allows  the  President  to  send  an  alien  off 
before  he  can  obtain  such  writ,  thus  unconstitutionally  sus- 
pending the  privilege  of  the  writ. 

5.  The  party  may  be  discharged  from  confinement,  by  order  of 
the  proper  judicial  authority,  for  good  cause ;  the  act  confers 
the  power  on  the  President  alone. 

4.  But  the  act  contemplates  penal  justice;  involving, 

1.  Banishment  from  the  country  of  the  alien's  choice;  and  per- 
haps of  his  tenderest  relations. 

2.  Loss  of  employment  and  property. 

3.  A  sea-voyage  ;  dangerous  in  itself,  and  also  from  the  casualties 
incident  to  time  of  war. 

4.  Possible  vindictiveness  of  the  country  whence  he  emigrated. 
2.  Answers  to  arguments  to  prove  the  act  constitutional. 

1.  The  admission  of  aliens  being  a   favour,  it  is  not  therefore 
revocable  by  the  Federal  Government ;  because, 

1.  If  revocable  at  all,  it  does  not  follow  that  the  Constitution  has 
given  to  that  government  the  power  to  revoke  it. 

2.  Favours  are  not  always  revocable,  as  grants  of  land,  pardon 
to  a  malefactor,  naturalization,  &c. 

2.  Aliens  not  being  parties  to  the  Constitution,  it  does  not  follow 
that  Congress  may  invade,  as  to  them,  the  rights  and  privileges 
it  secures;  because, 

1.  Such  absolute  authority  may  have  been  left  to  the  states,  or 
at  least  may  not  have  been  conferred  on  Congress. 

2.  But  aliens,  though  not  parties  to  the  Constitution,  are  entitled, 
whilst  they  conform  to  it,  to  its  protection,  as  to  the  protection 
of  the  laws,  to  which  also  they  are  not  parties. 

3.  Upon  similar  reasoning  aliens  might  not  be  banished  only, 
but  capitally  punished  by  the  President,  without  a  trial. 

3.  That  aliens,  by  the  law  and  practice  of  nations  may  be  removed 
at  pleasure  for  offences  against  the  law  of  nations,  and  that 
Congress  is  authorized  to  define  and  punish  such  offences,  does 
not  justify  the  indiscriminate  expulsion  of  all  aliens;  because, 


182  ANALYSIS  OF  REPORT. 

1.  A\ien~enemies  alone,  are  thus  subject  to  the  law  of  nations, 
alien-friends  (except  public  ministers),  being  subject  to  the 
municipal  law. 

2.  The  act  being  admitted  to  be  penal,  must  be  justified  by  some 
offence  deserving  punishment. 

3.  Offences  for  which  aliens  within  the  jurisdiction  of  a  country, 
are  punishable,  are, 

1.  Those  committed  by  their  states;   which  is  the  case  of 
alien-enemies,  admitted  to  be  subject  to  the  laws  of  nations, 
and  so  within  the  control  of  Congress. 

2.  Those  committed  by  aliens  personally ;  which  is  the  case 
of  alien-friends,  who,  like  citizens,  are  subject  to  the  mu- 
nicipal law,  and  so  not  amenable  to  Congress. 

4.  The  laws  of  nations  distinguish  between  alien-friends,  and 
alien-enemies,  allowing  the  removal  of  the  latter  at  discretion, 
but  holding  the  former  to  be  under  a  temporary  allegiance, 
and  entitled  to  a  corresponding  protection. 

4.  That  Congress  may  grant  letters  of  marque  and  reprisal,  and 
that  reprisals  may  be  made  on  persons  as  well  as  property, 
does  not  justify  the  act;  because, 

1.  Reprisals  are  a  mode  of  obtaining  justice  by  seizure  of  per- 
sons or  property  for  injuries  done  by  a  state,  or  its  members, 
to  another  state,  or  its  members,  when  the  aggressor  refuses 
redress. 

2.  No  injury  is  alleged  or  implied  from  any  particular  nation, 
for  which  this  proceeding  may  afford  reparation.    It  is  directed 
against  aliens  of  all  nations. 

5r  That  Congress  has  power  to  make  war  does  not  justify  the  act, 
which  is  applicable  to  alien  -friends. 

6.  That  Congress  may  protect  each  state  against  invasion,  and 
provide  for  repelling  invasion,  does  not  justify  it;  because, 

1.  These  powers  do  not  add  to  the  general  power  of  war. 

2.  Invasion  is  only  one  operation  of  war;  and  what  is  not  inci- 
dent to  the  power  of  war  generally,  cannot  be  so  to  any  of 
its  operations. 

3.  A  power  to  act  when  a  case  occurs,  does  not  include  a  power 
over  all  means  which  tend  to  prevent  the  occurrence ;  which 
would  frustrate  every  practicable  definition  of  limited  powers. 
Thus  it  would  involve, 

1.  A  power  over  religion,  lest  a  bigoted  and  tyrannical  state 
should  invade  us  on  account  of  our  belief. 

2.  A  power  over  popular  instruction,  and  over  the  provision 
for  the  poor,  as  tending  to  prevent  insurrections,  &c. 

7.  That  the  Constitution  has  given  to  the  states  no  power  to  re- 
move aliens,  and  that  there  would  be,  else,  no  power  in  the 
country  to  send  away  such  as  are  dangerous,  does  not  justify 
the  Alien-act;  because, 

1.  Several  powers^are  withheld  from  both  the  federal  and  state 
governments, — as  to  tax  exports ;  so  that  the  non-possession  of 


ANALYSIS  OF  REPORT.  183 

a  power  by  the  state  governments,  does  not  imply  its  posses- 
sion by  the  federal  government. 

2.  The  powers  of  the  state  governments  are  not  the  gift  of  the 
Federal  Constitution,  but  the  residuum  remaining  in  the  states, 
after  the  delegation  of  certain 'specific  powers  to  the  Union. 
8.  The  Alien -Act  is  not  vindicated  by  the  example  of  the  Vir- 
ginia taw  of  1785,  re-enacted  in  1792,  which  referred  to  alien- 
enemies. 

2.  The  Alien- Act  unites  legislative,  executive,  and  judicial  power  in  the 
•  hands  of  the  President. 

1.  Legislative  :    Because  details,  especially  as  to  crimes,  are  essential 
to  the  idea  of  a  law ;  and  here  every  circumstance  of  danger,  sus- 
picion, and  secret  machination  is  to  be  defined  by  the  will  of  the 
President. 

2.  Judicial :    Because  the  President  is  to  judge  whether  the  circum- 
stances exist,  which  he,  as  a  legislator,  has  resolved  shall  be  sus- 
picious, &c. 

3.  Executive :  Because  he  is  to  execute  his  own  decrees,  by  removal 
of  the  party  suspected. 

3.  This  union  of  powers  subverts  the  gen'eral  principles  of  free  govern- 
ment, which  require  the  three  great  functions  to  be  kept  in  distinct 
hands. 

4.  It  also  subverts  the  particular  organization  of  the  Federal  Constitu- 
tion, which  provides  for  the  separation  of  those  powers. 

II.  THE  SEDITION-ACT  : — Of  which  it  is  said  that, 

1.  It  exercises  a  power  not  delegated  by  the  Constitution,  wherein  of 
1.  The  argument  that  the  common  law  is  part  of  the  law  of  the 
United  States  in  their  national  capacity :  therein  consider, 

1.  That  before  the  Revolution,  the  common  law,  however  it  may 
have  existed,  with  more  or  less  modification  in  all  the  colonies, 
did  not  pervade  the  whole  as  one  society ;  because, 

1.  It  was  not  the  same  in  any  two  colonies:  the  modifications 
being  materially  different  in  many. 

2.  There  was  no  common  legislature  to  enact,  nor  common 
,                     magistracy  to  enforce  it. 

2.  That  the  Revolution  did  not  imply,  nor  introduce  it  as  a  law  of 
the  Union ;  because, 

1.  The  fundamental  principle  of  the  Revolution  was,  that  the 
colonies  were  united  by  a  common  executive,  but  not  by  a 
common  legislative  sovereign. 

2.  Parliamentary  regulation  of  trade   [mere  practice  without 
right],  was  acquiesced  in  without  inquiry,  but  the  assumption 
of  a  power  to  legislate  in  Ml  cases,  resulted  in  the  conclusion 
that  Parliament  could  not  legislate  in  any  case. 

3.  The  interval  between  the  beginning  of  the  Revolution  and  the 
final  ratification  of  the  Articles  of  Confederation,  did  not  intro- 
duce it ;  the  nature  and  extent  of  the  Union  being,  in  that  inter- 
val, determined  by  the  crisis  only. 

4.  The  Articles  of  Confederation  did  not  adopt  it ;  because, 


184  ANALYSIS  OF  REPORT. 

1.  Nothing  in  the  instrument  countenances  such  an  idea. 

2.  Every  power,  jurisdiction,  and  right,  not  expressly  delegated, 
is  retained. 

5.  The  present  Constitution  did  not  introduce  it ;  wherein  con- 
sider, 

1.  That  particular  parts  of  the  common  law  may  have  a  sanc- 
tion from  the  Constitution ;  being, 

1 .  So,  much  as  is  comprehended   in  the  technical  phrases 
thereof. 

2.  Such  other  parts  as  Congress  may  adopt  as  means  neces- 
sary and  proper  to  carry  into  effect  the  powers  delegated. 

2.  The  clause  supposed  to  justify  the  conclusion  that  the  com- 
mon law,  generally,  is  the  law  of  the  Union,  viz. : 

That  which  extends  the  judicial  power  to  all  cases  in  law 
and  equity,  arising  under  the  Constitution,  laws,  &c.,  of  the 
United  States ;  wherein  consider, 

1.  That  cases  may  arise  under  the   Constitution,   distinct 
from  such  as  arise  out  of  laws  and  treaties,  without  sup- 
posing the  common  law  part  of  the  Constitution,  viz. : 

1.  Cases  involving  restrictions  on  states;  as  to  emit  bills 
of  credit,  &c. 

2.  Cases  between  citizens  of  different  states,  &c. 

2.  That  the  phrase,  "  cases  in  law  and  equity,"  refers  only 
to  civil  cases  :  whereas  the  common  law  includes  criminal 
cases  also ;  because, 

1.  Criminal  cases  in  law  and  equity,  would  be  a  language 
unknown  to  the  law. 

2.  Appellate  jurisdiction,    in    such    cases    of  "  law   and 
equity,"  is  given  (with  one  or  two  exceptions)  to  the 
Supreme  Court,  both  as  to  law  and  fact,  which  excludes 
criminal  cases. 

3.  The  judicial  power  is  not  (by  Amendment  XI.  of  Con- 
stitution) to  be  construed  to  extend  to  any  suit  in  law  or 
equity,  of  an  individual  against  a  state;   which  also 
excludes  the  idea  of  criminal  cases. 

3.  That  the  phrase,  "  cases  in  law  and  equity,"  referring  at 
any  rate  only  to  civil  cases,  could  not  justify  the  Sedition- 
Act,  which  is  a  criminal  statute. 

4.  That  the  clause  in  question,  though  it  involved  the  com- 
mon law,  both  in  civil  and  criminal  cases,  defines  the 
extent  of  the  judicial,  and  not  of  the  legislative  power. 

3.  That  the  descriptions  in  the  Constitution  of  the  law  of  the 
United  States,  do  not  embrace  the  common  law,  viz. : 

1.  That  which  is  meant  as  a  guide  to  United  States  judges, 
"The  Constitution,  and  laws  and  treaties  in  pursuance 
thereof."    Article  III.,  section  1. 

2.  That  which  is  meant  as  a  guide  to  state  judges,  "  The 
Constitution,  and  laws  and  treaties  in  pursuance  thereof, 
shall  be  the  supreme  law  of  the  land."    Article  VI. 


ANALYSIS  OF  REPORT.  185 

4.  The  difficulties  and  consequences  of  a  constructive  introduc- 
tion of  the  common  law,  viz. : 

1.  The  difficulties : 

1.  Is  it  with  or  without  the  British  statutes? 

2.  If  witfi  them,  to  what  period ;  the  oldest  or  youngest 
colony,  or  a  mean  ? 

3.  Is  regard  to  be  had  to  colonial  modifications  ?    If  so, 
which?  how?  &c. 

2.  The  consequences  flowing  from  such  construction. 

1.  As  to  the  several  departments  of  the  Federal  Govern- 
ment :  and  therein  as  to, 

1.  The  legislative  authority  of  the  Union  : 

1.  If  the  common  law  be  established  by  the  Consti- 
tution, 

1.  No  part  of  it  could  be  altered.     Statutes  miti- 
gating its  barbarous  severities,  including  the  sedi- 
tion-law itself,  would  be  void. 

2.  The  whole  code,  with  all  its  incongruities,  &c., 
would  be  inviolably  saddled  on  the  people. 

2.  If  the  common  law  be  supposed  not  fixed  by  the 
Constitution,  but  liable  to  alteration  by  Congress, 

It  extends  the  authority  of  Congress  to  every  sub- 
ject of  legislation,  (for  the  common  law  embraces 
all,)  and  emancipates  it  from  all  limitations. 
*    2.  The  executive  authority : 

1.  The  President's  authority  to  execute,  will  be  co- 
extensive with  the  legislative  power  to  enact. 

2.  The  President's  authority  might  be  extended  to  the 
prerogatives  which  the  common  law  confers  on  the 
crown. 

3.  The  judicial  authority  : 

1.  If  the  common  law  has  a  constitutional  obligation, 

The  judges  would  possess  a  discretion  little  short 
of  legislative  power,  which  would  be  perma- 
nent and  uncontrollable. 

2.  If  it  be  of  only  legal  obligation,  subject  to  Congress  : 

1.  The  dangerous  discretion  would  exist,  of  deter- 
mining what  parts  of  the  common  law  are  adapted 
to  the  circumstances  of  the  country. 

2.  This  discretion  must  continue  until  Congress 
could  enact  a  full  system  of  Jaws. 

2.  As  to  the  authority  of  the  states : 

Their  residuary  sovereignty  would  be  overwhelmed 

by  this  one  construction. 

2.  Other  arguments  founded  on  various  parts  of  the  Constitution,  viz. : 
1.  On  the  preamble  to  the  Constitution  ;  wherein  consider, 

That  this  part  of  an  instrument  is  never  allowed  to  be  set  up 
in  opposition  to  the  plain  meaning  of  the  body  thereof. 


186  ANALYSIS  OF  REPORT. 

2.  On  the  clause  which  gives  Congress  power  to  lay  and  collect 
taxes,  &c.,  to  pay  the  debts,  and  provide  for  the  common  defence 
and  general  welfare,  &c. 

The  effect  of  this  already  considered,  (ante,  p.  179-80,)  and 
supposed  not  to  enlarge  the  enumerated  powers  of  Congress. 

3.  On  the  clause  which  empowers  Congress  to  make  all  laws 
necessary  and  proper  to  carry  into  effect  the  powers  conferred 
by  the  Constitution  ;  wherein  consider, 

1.  That  this  clause  confers  no  new  powers,  but  merely  declares 
[what,  at  any  rate,  would  have  been  implied],  that  the  grant 
of  a  power  shall  include  the  means  of  its  execution. 

2.  The  mode  of  reasoning  to  be  pursued  under  this  clause. 

1.  To  determine  if  the  power  to  be  exercised  is  expressed  in 
the  Constitution. 

2.  If  not,  to  see  if  it  is  properly  incident  to  any  express 
power,  arid  necessary  to  its  execution. 

3.  The  express  power  to  which  the  enactment  of  a  sedition  law 
is  supposed  to  be  incident: 

The  power  to  suppress  insurrections ;  wherein  consider, 

1.  That  if  a  power  to  suppress,  authorizes  whatever  tends  to 
•prevent,  the  power  of  Congress  is  unlimited. 

2.  That  the  contemporaneous  construction,  whilst  the  Consti- 
tution was  under  discussion,  was  nem.  con.,  that  the  inci- 
dental power  must  have  to  the  principal  the  relation  of 
necessity,  and  not  of  mere  tendency  to  promote. 

3.  That   such   a   construction   frustrates   an   appeal  to  the 
judiciary,  which  can  exert  a  judicial  control  if  the  relation 
of  necessity  is  to  exist,  but  not  if  a  tendency  to  promote  is 
enough. 

2.  The  sedition-act  exercises  a  power  positively  forbidden  by  one  of  the 
amendments  to  the  Constitution ;  wherein  consider, 
I .  That  the  freedom  of  the  press  is  not  to  be  determined  by  the  meaning 
of  the  phrase  at  common  law ;  and  therein  consider, 

1.  That  the  sedition-act  abridges  the  freedom  of  publication  even  by 
the  common  law  of  England. 

2.  That    the   common    law   idea    of  freedom   of  the    press,    viz., 
exemption  from  all  previous  restraint,  is  not  the  American  idea ; 
because, 

1.  There  is  no  material  difference  between  a  previous  restraint, 
and  a  subsequent  punishment  of  publications. 

2.  There  is  an  essential  difference  between   the   government  of 
Great  Britain,  and  of  America,  requiring  in  the  latter  greater 
freedom  of  remark. 

3.  The  object  in  the  British  government  is  to  protect  the  press 
from  the  assaults  of  the  executive.      In  America  we  desire  to 
protect  it,  also,  against  the  legislature. 

4.  That  not  only  is  freedom  of  the  press  secured  by  the  Constitu- 
tion in  America,  and  in  England  merely  by  law,  and  not  only 
does  it  extend  in  the  former  as  well  to  subsequent  penalties,  as 


ANALYSIS  OF  REPORT.  187 

previous  restraint,  but  the  actual  freedom  is  greater  in  America 
than  in  England  ;  wherein  consider, 

1.  The  difference  in  the  governments,  those  of  America  being 
wholly  elective  and  responsible. 

2.  The  practice  in  England  in  respect  to  the  elective  and  re- 
sponsible members  of  the  government. 

3.  The  practice  in  the  several  states  of  the  confederacy. 

4.  The  good  effects  which  have  resulted  from  this  free  animad- 
version. 

1.  In  the  world  at  large. 

2.  As  respects  our  Revolution,  which  was  promoted  by  can- 
vassing the  measures  of  government. 

3.  As  respects  the  present  Federal  Constitution,  which  was 
substituted  for  the  Articles  of  Confederation,  in  consequence 
of  the  latter's  defects  being  freely  investigated. 

3.  That  freedom  of  conscience  and  of  religion  are  guaranteed  by  the 
same  clause  which  relates  to  freedom  of  the  press,  and  the  former 
cannot  be  supposed  to  be  limited  by  the  common  law  meaning. 
2.  That  the  amendment  in  question  positively  denied  to  Congress  any 
power  over  the  press,  and  does  not  suppose  such  power  to  exist,  with 
the  qualification  that  its  freedom  shall  not  be  abridged  ,*  because, 

1.  The  provision  was  recommended  by  the  ratifying  conventions  of 
several  states  with  a  view  to  exclude  Congress  from  all  power  over 
the  subject. 

2.  The  amendment  was  introduced  in  order  to  quiet  the  apprehensions 
of  those  states. 

3.  It  is  more  reasonable  to  deem  the  power  withheld,  than  to  suppose 
one  so  important  left  to  vague  construction. 

4.  The  peculiar  magnitude  of  some  of  the  powers  of  the  Federal 
Government,  the  duration  of  some  of  its  offices,  and  the  distance 
of  many  of  the  people  from  the  seat  of  government,  are  reasons 
why  it  might  have  been  the  policy  of  the  Federal  Constitution  to 
exempt  the  press  from  federal  jurisdiction. 

3.  The  exercise  of  this  power  over  the  press  ought,  more  than  any  other, 
to  produce  universal  alarm  ;  and  therein  consider, 

1.  That  the  responsibility  of  officers  of  government  cannot  be  secured 
without  a  free  investigation  of  their  conduct  and  motives. 

2.  That  it  is  the  right  and  duty  of  every  citizen  to  make  such  inves- 
tigation, and  promulge  the  results. 

3.  That  in  the  several  elections,  during  the  continuance  of  the  sedi- 
tion-act, it   would    tend   to   screen   the  incumbents  of  office  from 
inquiry. 

4.  That  it  is  no  defence  of  the  act  that  it  allows  the  truth  of  the  publi- 
cation to  be  proved,  and  only  punishes  what  is  false;  because, 

1.  Formal  legal  proof,  even  of  facts,  in    political    disquisition,  is 
extremely  difficult. 

2.  Opinions,   inferences    and    conjectural    observations,    necessary 
concomitants  of  free  inquiry,  cannot  generally  be  proved  at  all,  in 
court. 


188  ANALYSIS  OF  REPORT. 

5.  That  it  is  no  defence  of  the  act  that  the  intent  must  be  to  defame, 
of  bring  into  contempt,  disrepute,  or  hatred,  for  such  is  ever  the 
object  of  one  who  thinks  he  has  discovered  an  error. 

6.  That  the  right  of  election  (which  depends  on  full  information)  is 
the  essence  of  a  free  government,  and  is  impaired  by  the  sedition- 
act. 

1 .  Competitors  against  incumbents  of  office  have  not  an  equal  chance, 
the  latter  being  shielded  by  the  act. 

2.  The  people  cannot  fully  discuss  and  ascertain  the  relative  merits 
of  such  competitors  and  incumbents. 

6th  Resolution.  Refers  to  a  declaration  of  the  Virginia  Convention  which 
ratified  the  Federal  Constitution,  touching  freedom  of  the  press,  and 
affirms  that  it  would  be  a  criminal  degeneracy  now  to  be  indifferent 
to  so  palpable  a  violation  thereof,  &c. ;  wherein  of, 

1.  The  declaration  of  the  Virginia  Convention  in  tot  verbis. 

2.  Acquiescence  in  the  violation  of  freedom  of  the  press'would  yield 
a  similar  power  over  religion  and  conscience ;  for, 

1.  Neither  power  was  delegated. 

2.  Both  were  reserved  by  the  same  amendment,  recommended  and 
made  at  the  same  time. 

3.  The  common  law  measure  applies  to  one,  as  well  as  to  the 
other. 

4.  A  similar  form  of  words  is  used  to  guarantee  both. 

1th  Resolution.  Professes  sincere  affection  for  the  people  of  the  other 
states,  and  anxiety  to  perpetuate  the  Union,  and  appeals  to  the  other 
states  to  concur  in  declaring  the  alien  and  sedition-laws  unconstitu- 
tional, and  to  take  necessary  and  proper  measures  to  maintain  unim- 
paired the  authorities,  rights,  and  liberties  reserved  to  the  states 
respectively,  or  to  the  people ;  wherein  consider, 

1.  That  such  declaration  is  no  invasion  of  the  functions  of  the  judiciary/ 
being  a  mere  declaration  of  opinion. 

2.  That  the  relations  of  the  state  legislatures  to  the  Federal  Govern- 
ment justified  such  a  declaration;  for, 

1.  They  might  address  Congress  to  repeal  the  laws. 

2.  They  might  instruct  or  request  their  own  senators  and  representa- 
tives to  vote  to  repeal  the  laws. 

3.  They  might  originate  an  amendment  to  the  Constitution. 

3.  That  neither  the  object  (to  maintain  the  Constitution,  &c.)  nor  the 
means  (such  as  were  necessary  and  proper)  could  be  objected  to. 

4.  That  during  the  discussions  on  the  ratification  of  the  Federal  Con- 
stitution, a  vigilant  supervision  of  the  Federal  Government  by  the 
state  legislatures,  was  deemed  a  recommendation. 

In  view  of  all  which  the  adoption  of  the  following  resolution  is  recom- 
mended. 

Resolved,  That  the  General  Assembly,  having  carefully  and  respectfully 
attended  to  the  proceedings  of  a  number  of  the  states,  in  answer  to  its 
resolutions  of  December  21,  1798,  and  having  fully  reconsidered  the 


REPORT  OF   1799.  189 

latter,  find  it  to  be  its  indispensable  duty  to  adhere  to  the  same,  as 
founded  in  truth,  as  consonant  with  the  Constitution,  and  as  conducive  to 
its  preservation ;  and  more  especially  to  be  its  duty  to  renew,  as  it  does 
hereby  renew,  its  protest  against  "the  alien  and  sedition  acts,"  as  palpa- 
ble and  alarming  infractions  of  the  Constitution. 


REPORT    OF    1T99. 

VIRGINIA. 

HOUSE  OF  DELEGATES. 

Report  of  the  committee  to  whom  ivere  referred  the  communications  of 
various  states  relative  to  the  resolutions  of  the  General  Assembly  of  this 
state,  concerning  the  Alien  and  Sedition- Laic s. 

WHATEVER  room  might  be  found  in  the  proceedings  of  some  of  the 
states  who  have  disapproved  of  the  resolutions  of  the  General  Assembly 
of  this  commonwealth,  passed  on  the  21st  day  of  December,  1798,  for 
painful  remarks  on  the  spirit  and  manner  of  those  proceedings,  it  appears 
to  the  committee  most  consistent  with  the  duty,  as  well  as  dignity  of  the 
General  Assembly,  to  hasten  an  oblivion  of  every  circumstance  which 
might  be  construed  into  a  diminution  of  mutual  respect,  confidence,  and 
affection,  among  the  members  of  the  Union.  , 

The  committee  have  deemed  it  a  more  useful  task,  to  revise,  with  a 
critical  eye,  the  resolutions  which  have  met  with  this  disapprobation ;  to 
examine  fully  the  several  objections  and  arguments  which  have  appeared 
against  them ;  and  to  inquire  whether  there  be  any  errors  of  fact,  of 
principle,  or  of  reasoning,  which  the  candour  of  the  General  Assembly 
ought  to  acknowledge  and  correct. 

The  first  of  the  resolutions  is  in  the  words  following: 

Resolved,  That  the  General  Assembly  of  Virginia  doth  unequivocally 
express  a  firm  resolution  to  maintain  and  defend  the  Constitution  of  the 
United  States,  and  the  Constitution  of  this  state,  against  every  aggression, 
either  foreign  or  domestic,  and  that  they  will  support  the  government  of 
the  United  States  in  all  measures  warranted  by  the  former. 

No  unfavourable  comment  can  have  been  made  on  the  sentiments  here 
expressed.  To  maintain  and  defend  the  Constitution  of  the  United  States, 
and  of  their  own  state,  against  every  aggression,  both  foreign  and  domes- 
tic, and  to  support  the  government  of  the  United  States  in  all  measures 
warranted  by  their  Constitution,  are  duties  which  the  General  Assembly 


190  REPORT  OF  1799. 

ought  always  to  feel,  and  to  which,  on  such  an  occasion,  it  was  evidently 
proper  to  express  its  sincere  and  firm  adherence. 

In  their  next  resolution — The  General  Assembly  most  solemnly  declares 
a  warm  attachment  to  the  union  of  the  states,  to  maintain  which  it 
pledges  all  its  powers  /  and  that,  for  this  end,  it  is  its  duty  to  watch 
over  and  oppose  every  infraction  of  those  principles,  which  constitute  the 
only  basis  of  that  union,  because  a  faithful  observance  of  them  can  alone 
secure  its  existence  and  the  public  happiness. 

The  observation  just  made  is  equally  applicable  to  this  solemn  declara- 
tion, of  warm  attachment  to  the  union,  and  this  solemn  pledge  to  maintain 
it;  nor  can  any  question  arise  among  enlightened  friends  of  the  union,  as 
to  the  duty  of  watching  over  and  opposing  every  infraction  of  those  princi- 
ples which  constitute  its  basis,  and  a  faithful  observance  of  which  can 
alone  secure  its  existence,  and  the  public  happiness  thereon  depending. 

The  third  resolution  is  in  the  words  following : 

That  this  Assembly  doth  explicitly  and  peremptorily  declare,  that  it 
views  the  powers  of  the  Federal  Government,  as  resulting  from  the  com- 
pact, to  which  the  states  are  parties,  as  limited  by  the  plain  sense  and 
intention  of  the  instrument  constituting  that  compact ;  as  no  farther 
valid  than  they  are  authorized  by  the  grants  enumerated  in  that  com- 
pact ;  and  that  in  case  of  a  deliberate,  palpable  and  dangerous  exercise  of 
other  poivers,  not  granted  by  the  said  compact,  the  states  who  are  parties 
thereto  have  the  right,  and  are  in  duty  bound,  to  interpose  for  arresting 
ike  progress  of  tlve  evil,  and  for  maintaining  within  their  respective 
limits,  the  authorities,  rights,  and  liberties  appertaining  to  them. 

On  this^resolution,  the  committee  have  bestowed  all  the  attention  which 
its  importance  merits ;  they  have  scanned  it  not  merely  with  a  strict,  but 
with  a  severe  eye ;  and  they  feel  confidence  in  pronouncing,  that,  in  its 
just  and  fair  construction,  it  is  unexceptionably  true  in  its  several  positions, 
as  well  as  constitutional  and  conclusive  in  its  inferences. 

The  resolution  declares,  first,  that  "it  views  the  powers  of  the  Federal 
Government,  as  resulting  from  the  compact  to  which  the  states  are  par- 
ties ;"  in  other  words,  that  the  Federal  powers  are  derived  from  the  Con- 
stitution, and  that  the  Constitution  is  a  compact  to  which  the  states  are 
parties.* 

Clear  as'the  position  must  seem,  that  the  federal  powers  are  derived  from 

*  The  position  that  the  powers  of  the  Federal  Government  result  from  a  compact  to 
which  the  states  are  parties,  has  been  assailed  as  if  it  assumed  that  the  idea  of  a  Con- 
stilution  was  thereby  excluded,  and  the  government  converted  into  a  mere  confedera- 
tion. (1  Story's  Comrns.  on  Constitution,  287.)  But  the  essential  question  to  which  the 
attention  of  the  writer  seems  to  have  been  directed,  was  not  as  to  the  nature  of  the 
Constitution,  whether  it  were  an  instrument  of  confederation,  or  of  government,  but  it 
was  as  to  who  are  the  parlies  thereto,  the  aggregate  people  of  the  whole  Union,  or  the 
states  in  their  highest  sovereign  capacity,  not  represented  by  their  ordinary  govern- 
ments, but  by  delegates  deputed  for  the  sole  purpose  of  expressing  the  will  of  the  people 
of  each  state  on  the  subject. 

Whether  or  not  it  follows  that  because  the  states  are  parties  to  the  Federal  Govern, 
ment,  they  must,  therefore,  be  the  rightful  judges  in  the  last  resort  of  alleged  usurpa- 
tions by  that  government,  in  any  or  all  of  its  departments,  is  submitted  to  the  reader 
upon  the  reasoning  in  the  text.  (See,  also,  1  Tuck.  Bl.  App.  170.) 


REPORT  OF  1799.  191 

the  Constitution,  and  from  that  alone,  the  committee  are  not  unapprised  of 
a  late  doctrine,  which  opens  another  source  of  federal  powers,  not  less 
extensive  and  important,  than  it  is  new  and  unexpected.  The  examination 
of  this  doctrine  will  be  most  conveniently  connected  with  a  review  of  a 
succeeding  resolution.  The  committee  satisfy  themselves  here  with  briefly 
remarking,  that  in  all  the  cotemporary  discussions  and  comments  which 
the  Constitution  underwent,  it  was  constantly  justified  and  recommended, 
on  the  ground,  that  the  powers  not  given  to  the  government,  were  with- 
held from  it ;  and  that,  if  any  doubt  could  have  existed  on  this  subject, 
under  the  original  text  of  the  Constitution,  it  is  removed,  as  far  as  words 
could  remove  it,  by  the  12th  amendment,  now  a  part  of  the  Constitution, 
which  expressly  declares,  "  that  the  powers  not  delegated  to  the  United 
States,  by  the  Constitution,  nor  prohibited  by  it  to  the  states,  are  reserved 
to  the  states  respectively,  or  to  the  people." 

The  other  position  involved  in  this  branch  of  the  resolution,  namely, 
"  that  the  states  are  parties  to  the  Constitution  or  compact,"  is,  in  the 
judgment  of  the  committee,  equally  free  from  objection.  It  is  indeed  true, 
that  the  term  "  states,"  is  sometimes  used  in  a  vague  sense,  and  some- 
times in  different  senses,  according  to  the  subject  to  which  it  is  applied. 
Thus,  it  sometimes  means  the  separate  sections  of  territory  occupied  by 
the  political  societies  within  each  ;  sometimes  the  particular  governments, 
established  by  those  societies ;  sometimes  those  societies  as  organized  into 
those  particular  governments;  and,  lastly,  it  means  the  people  composing 
those  political  societies,  in  their  highest  sovereign  capacity.  Although  it 
might  be  wished  that  the  perfection  of  language  admitted  less  diversity  in 
the  signification  of  the  same  words,  yet  little  inconveniency  is  produced 
by  it,  where  the  true  sense  can  be  collected  with  certainty  from  (he  diffe- 
rent applications.  In  the  present  instance,  whatever  different  construc- 
tions of  the  term  "  states,"  in  the  resolution,  may  have  been  entertained,  all 
will  at  least  concur  in  that  last  mentioned  ;  because,  in  that  sense,  the  Con- 
stitution was  submitted  to  the  "states:"  in  that  sense  the  "states"  ratified  it : 
and,  in  that  sense  of  the  term  "  states,"  they  are  consequently  parties  to 
the  compact,  from  which  the  powers  of  the  federal  government  result.* 

The  next  position  is,  that  the  General  Assembly  views  the  powers  of 
the  federal  government,  "  as  limited  by  the  plain  sense  and  intention  of 
the  instrument  constituting  that  compact,"  and  "  as  no  farther  valid  than 
they  are  authorized  by  the  grants  therein  enumerated."  It  does  not  seem 
possible,  that  any  just  objection  can  lie  against  either  of  these  clauses. 
The  first  amounts  merely  to  a  declaration,  that  the  compact  ought  to  have 

*  This  paragraph  seems  (o  have  in  view  some  observations  of  Mr.  GEORGE  KEITH 
TAYLOR,  in  the  debate  on  the  Resolutions  in  1798,  ante,  pp.  122  to  126.  The  Resolu- 
tions,  as  originally  introduced  into  the  House  of  Delegates,  had  the  word  "  alone"  fol- 
lowing '* states"  so  as  to  make  that  clause  read  thus : — " to  which  the  states  alone  are 
parties."  Mr.  Taylor's  remarks,  which  are  very  ingenious,  tended  to  show  that  the 
states, — which  he  interpreted  to  mean  the  ordinary  governments  of  the  states, — were 
not  parties  to  the  Federal  Constitution,  at  all,  much  less,  sole  parties.  His  argument 
so  far  prevailed  as  to  induce  Mr.  GILES  to  move  to  strike  out  the  word  "  alone,"  in  which 
Mr.  JOHN  TAYLOR  of  Caroline,  the  mover  of  the  resolutions,  concurred,  and  it  was 
stricken  out  accordingly.  (See  ante,  pp.  148  and  150.) 


192  REPORT  OF  1799. 

the  interpretation  plainly  intended  by  the  parties  to  it ;  the  other  to  a 
declaration,  that  it  ought  to  have  the  execution  and  effect  intended  by 
them.  If  the  powers  granted,  be  valid,  it  is  solely  because  they  are 
granted :  and,  if  the  granted  powers  are  valid,  because  granted,  all  other 
powers  not  granted,  must  not  be  valid. 

The  resolution,  having  taken  this  view  of  the  federal  compact,  pro- 
ceeds to  infer,  "that,  in  case  of  a  deliberate,  palpable,  and  dangerous 
exercise  of  other  powers,  not  granted  by  the  said  compact,  the  states,  who 
are  parties  thereto,  have  the  right  and  are  in  duty  bound  to  interpose  for 
arresting  the  progress  of  the  evil,  and  for  maintaining  within  their  respec- 
tive limits,  the  authorities,  rights,  and  liberties  appertaining  to  them." 

It  appears  to  your  committee  to  be  a  plain  principle,  founded  in  com- 
mon sense,  illustrated  by  common  practice,  and  essential  to  the  nature  of 
compacts,  that,  where  resort  can  be  had  to  no  tribunal,  superior  to  the 
.  authority  of  the  parties,  the  parties  themselves  must  be  the  rightful  judges 
y    in  the  last  resort,  whether  the  bargain  made  has  been  pursued  or  violated. 
*J  The  Constitution  of  the  United  States  was  formed  by  the  sanction  of  the 
states,  given  by  each  in  its  sovereign  capacity.     It  adds"  to  the  stability 
and  dignity,  as  well  as  to  the  authority  of  the  Constitution,  that  it  rests  on 
this  legitimate  and  solid  foundation.    The  states,  then,  being  the  parties  to 
the  constitutional  compact,  and  in  their  sovereign  capacity,  it  follows  of 
necessity,  that  there  can  be  no  tribunal  above  their  authority,  to  decide  in 
the  last  resort,  whether  the  compact  made  by  them  be  violated  ;  and,  con- 
sequently, that,  as  the  parties  to  it,  they  must  themselves  decide,  in  the 
last  resort,  such  questions  as  may  be  of  sufficient  magnitude  to  require 
^Jheir  interposition. 

I     It  does  not  follow,  however,  that  because  the  states,  as  sovereign  parties 
/  to  their  constitutional  compact,  must  ultimately  decide  whether  it  has  been 
/   violated,  that  such  a  decision  ought  to  be  interposed,  either  in   a  hasty 
^manner,  or  on  doubtful  and  inferior  occasions.     Even  in  the  case  of  ordi- 
nary conventions  between  different  nations,  where,  by  the  strict  rule  of 
interpretation,  a  breach  of  a  part  may  be  deemed  a  breach  of  the  whole, 
every  part  being  deemed  a  condition  of  every  other  part  and  of  the  whole, 
it  is  always  laid  down  that  the  breach  must  be  both  wilful  and  material  to 
justify  an  application  of  the  rule.     But  in  the  case  of  an  intimate  and 
constitutional  union,  like  that  of  the  United  States,  it  is  evident  that  the 
interposition  of  the  parties,  in  their  sovereign  capacity,  can  be  called  for 
by  occasions  only,  deeply  and  essentially  affecting  the  vital  principles  of 
their  political  system. 

The  resolution  has  accordingly  guarded  against  any  misapprehension 
of  its  object,  by  expressly  requiring  for  such  an  interposition,  "  the  case 
of  a  deliberate,  palpable,  and  dangerous  breach  of  the  Constitution,  by 
the  exercise  of  powers  not  granted  by  it.  It  must  be  a  case,  not  of  a  light 
and  transient  nature,  but  of  a  nature  dangerous  to  the  great  purposes  for 
which  the  Constitution  was  established.  It  must  be  a  case,  moreover,  not 
obscure  or  doubtful  in  its  construction,  but  plain  and  palpable.  Lastly,  it 
must  be  a  case  not  resulting  from  a  partial  consideration,  or  hasty  deter- 
mination ;  but  a  case  stamped  with  a  final  consideration  and  deliberate  ad- 


REPORT  OF  1799.  193 

herence.  It  is  not  necessary,  because  the  resolution  does  not  require  that  the 
question  should  be  discussed,  how  far  the  exercise  of  any  particular  power, 
ungranted  by  the  Constitution,  would  justify  the  interposition  of  the  par- 
ties to  it.  As  cases  might  easily  be  stated,  which  none  would  contend 
ought  to  fall  within  that  description  ;  cases,  on  the  other  hand,  might,  with 
equal  ease,  be  stated,  so  flagrant  and  so  fatal,  as  to  unite  every  opinion  in 
placing  them  within  that  description.* 

*  The  cautious  and  moderate  language  of  the  text  is  worthy  of  observation.  The  cases 
proper  for  interposition  by  the  states  are  said  to  be  such  only  as  involve  deliberate,  pal- 
pable,  and  dangerous  breaches  of  the  Constitution,  by  the  exercise  of  powers  not  granted. 
The  objects  of  interposition  are  merely  to  arrest  the  progress  of  the  usurpation,  and  to 
main  tain  Tne  authorities,  rights,  and  liberties  of  the  states,  as  parties  to  the  Constitution. 
*  Force,  on  this  occasion,  at  least,  appears  to  have  been  neither  threatened  nor  contem-Hk 
plated.  The  moral  influence  of  the  sentiment  of  the  states  and  of  the  people  was  relied 
upon.  Not  only  does  this  appear  from  the  declarations  of  Mr.  Madison,  in  his  letter  to 
Ingersoll,  post,  p.  257,  but  it  is  abundantly  manifested  by  the  tenor  of  the  debates  on 
the  resolutions,  and  by  the  report.  Thus  Mr.  MERCER,  replying  to  Mr.  GEORGE  K. 
TAYLOR,  holds  this  language  :  "The  gentleman  from  Prince  George  had  told  the  com- 
mittee that  the  resolutions  introduced!  by  the  gentleman  from  Caroline  were  calculated 
to  rouse  the  people  to  resistance,  to  excite  the  people  of  Virginia  against  the  federal 
government.  Mr.  M.  did  not  see  how  such  consequences  could  result  from  their  adop. 
tion.  They  contained  nothing  more  than  the  sentiments  which  the  people  in  many 
parts  of  the  state  had  expressed,  and  which  had  been  conveyed  to  the  legislature  in 
their  memorials  and  resolutions,  then  lying  upon  the  table."  See  ante,  p.  41.  Again  : 
"The  state  believed  some  of  its  rights  had  been  invaded  by  the  late  acts  of  the  federal 
government,  and  proposed  a  remedy  whereby  to  obtain  a  repeal  of  them.  The  plan 
contained  in  the  resolutions  appeared  to  Mr.  M.  the  most  advisable.  Force  was  not-^- 
thought  of  by  any  one."  Ante,  p.  42.  Then,  after  citing  seme  passages  from  the 
Federalist,  to  show  that  state  interposition  had  been  contemplated  by  the  authors  of 
that  work,  he  argues  that  not  only  is  the  right  of  the  states  to  communicate  with  each 
other  defended  by  that  authority,  but  that  the  adoption  of  a  regular  plan  of  opposi- 
tion, in  which  they  should  combine'  all  their  resources,  would  also  be  justified  by  it. 
"  But  no  such  wish,"  says  he,  "  is  entertained  by  the  friends  of  the  resolutions ;  their 
object  in  addressing  the  states  is  to  obtain  a  similar  declaration  of  opinion,"  &c, 
Ante,  p.  44. 

Mr.  BARBOUR  observed,  "that  the  gentleman  from  Prince  George  had  remarked  that 
these  resolutions  invited  the  people  to  insurrection  and  to  arms.  But,  Mr.  B.  said,  that 
if  he  could  conceive  the  consequence  foretold  would  grow  out  of  the  measure,  he  would 
become  its  bitterest  enemy,  for  he  deprecated  intestine  commotion,  civil  war,  and  blood- 
shed, as  the  most  direful  evils  which  could  befall  a  country,  except  slavery.  A  Ifesort 
to  arms  was  the  last  appeal  of  an  oppressed,  an  injured  nation,  and  was  never  made  but 
when  public  servants  converted  themselves,  by  usurpation,  into  masters,  and  destroyed 
rights  once  participated;  and  then  it  was  justifiable."  Ante,  p.  54.  Again:  "The 
gentleman  from  Prince  George  was  for  the  people's  rising  en  masse,  if  the  law  was 
unconstitutional.  For  his  part,  he  was  for  using  no  violence.  It  was  the  peculiar 
blessing  of  the  American  people  to  have  redress  within  their  reach  by  constitutional 
and  peaceful  means."  Anie,  p.  59. 

Mr.  JOHN  TAYLOR,  of  Caroline,  spoke  of  the  threats  of  war,  and  the  apprehension  of 
civil  commotion,  towards  which  the  resolutions  were  said  to  have  a  tendency.  "  Are 
the  republicans,"  said  he,  "  possessed  of  fleets  and  armies  ?  If  not,  to  what  could  they 
appeal  for  defence  and  support?  To  nothing,  except  public  opinion.  If  that  should 
be  against  them,  they  must  yield."  Ante,  p.  113.  And  he  is  not  less  emphatic  and 
distinct  in  a  subsequent  passage.  Ante,  pp.  114—15.  See  also  the  report,  postr 
pp.  230-31. 

It  has  been  suggested,  however,  as  proof  that  resistance  by  force  was  meditated,  that 
Virginia  prepared  herself  for  the  anticipated  conflict  by  establishing  arsenals,  and 

13 


-t- 


194  REPORT  OP  1799. 

But  the  resolution 'has  done  more  than  guard  against  misconstruction, 
by  expressly  referring  to  cases  of  a  deliberate,  palpable,  and  dangerous 
nature.  It  specifies  the  object  of  the  interposition  which  it  contemplates, 
to  be  solely  that  of  arresting  the  progress  of  the  evil  of  usurpation,  and 
of  maintaining  the  authorities,  rights,  andjiberties  appertaining  to  the 
states,  as  parties  to  the  Constitution. 

From  this  view  of  the  resolution,  it  would  seem  inconceivable  that  it 

erecting1  armories.  The  fact  standing  alone,  hardly  warrants  the  inference  under  any 
conceivable  circumstances,  but  especially  does  it  not  warrant  it  in  the  face  of  the  decla- 
rations just  cited  of  the  prominent  guides  and  advocates  of  the  action  of  the  state,  at 
that  period.  But,  in  truth,  the  armory  and  arsenal  bill  was  enacted  23d  January,  1798, 
about  six  months  before  the  alien  and  sedition-laws  were  passed,  and  three  months, 
probably,  before  they  were  contemplated,  at  a  time  When  Mr.  Adams's  administration, 
though  certainly  not  popular  in  Virginia,  was  not  particularly  obnoxious.  Can  it  be 
believed,  indeed,  that  a  party  which  could  marshal  so  much  talent  and  character,  and 
so  respectable  an  array  of  numbers  against  the  less  extreme  measure  of  the  resolutions 
of  the  succeeding  session  of  1798-9,  when  the  provocation  was  infinitely  greater,  would 
have  failed  to  penetrate  the  belligerent  purpose  of  that  bill,  if  any  had  existed,  or  that 
perceiving  it,  they  would  have  hesitated  to  expose  and  denounce  it? 

This  note,  protracted,  as  it  is,  ought  not  to  be  concluded  without  referring  to  the 
temper  of  wise  forbearance  which,  at  this  perilous  crisis,  was  earnestly  inculcated  by 
Mr.  JEFFERSON.  In  a  letter  to  Mr.  JOHN  TAYLOR,  in  June,  1798,  he  says : 

"  Mr.  New  showed  me  your  letter,  which  gave  me  an  opportunity  of  observing  what 
you  said  as  to  the  effect  with  you,  of  public  proceedings,  and  that  it  was  not  unwise 
now  to  estimate  the  separate  mass  of  Virginia  and  North  Carolina,  with  a  view  to  their 
separate  existence.  It  is  true  that  we  are  completely  under  the  saddle  of  Massachusetts 
and  Connecticut,  and  that  they  ride  us  very  hard,  insulting  our  feelings,  as  well  as  ex- 
hausting  our  strength  and  substance.  Their  natural  friends,  the  three  other  eastern 
states,  join  them  from  a  sort  of  family  pride,  and  they  have  the  art  to  divide  certain 
other  parts  of  the  Union,  so  as  to  make  use  of  them  to  govern  the  whole."  Then,  after 
observing  that  this  was  not  the  natural  state  of  things,  and  that  time,  of  itself,  would 
bring  relief,  which  besides  was  likely  to  be  hastened  by  impending  events,  he  continues : 
"  Be  this  as  it  may,  in  every  free  and  deliberating  society,  there  must,  from  the  nature 
of  man,  be  opposite  parties,  ami  violent  dissension  and  -discords  ;  and  one  of  these,  for 
the  most  part,  must  prevail  over  the  other,  for  a  longer  or  shorter  time.  Perhaps  this 
party  division  is  necessary  to  induce  each  to  watch,  and  delate  to  the  people  the  pro- 
ceedings of  the  other.  But  if,  on  a  temporary  superiority  of  the  one  party,  the  other  is 
to  resort  to  a  scission  of  the  Union,  no  federal  government  can  ever  exist.  If,  to  rid 
ourselves  of  the  present  rule  of  Massachusetts  and  Connecticut,  we  break  the  Union, 
will  tfce  evil  stop  there  ?  Suppose  the  New  England  states  alone  cut  off,  will  our  na- 
tur.es  be  changed  ?  Are  we  not  men  still,  to  the  south  of  that,  and  with  all  the  passions 
of  men  ?  Immediately  we  shall  see  a  Pennsylvania  and  a  Virginia  party  arise  in  the  re- 
siduary  confederacy,  and  the  public  mind  will  be  distracted  with  the  same  party-spirit. 
What  a  game,  too,  will  the  one  party  have  in  their  hands,  threatening  the  other  that 
unless  they  do  so  and  so,  they  will  join  their  northern  neighbours  !  If  we  reduce  our 
Union  to  Virginia  and  North  Carolina,  immediately  the  conflict  will  be  established  be- 
tween the  representatives  of  these  two  states,  and  they  will  end  by  breaking  into  their 
simple  units.  Seeing,  therefore,  that  an  association  of  men  who  will  not  quarrel  with 
one  another,  is  a  thing  which  never  yet  existed,  from  the  greatest  confederacy  of  nations, 
down  to  a  town-meeting,  or  a  vestry ;  seeing  that  we  must  have  somebody  to  quarrel 
with,  I  would  rather  keep  our  New  England  associates  for  that  purpose,  than  to  see 
pur  bickerings  transferred  to  others."  <r  It  is  true  that,  in  the  mean  time,  we  are  suffer- 
ing deeply  in  spirit,  and  incurring  the  horrors  of  a  war,  and  long  oppressions  of  enor- 
mous public  debt.  But  who  can  say  what  would  be  the  evils  of  a  scission,  and  when 
and  where  they  would  end  ?  Better  keep  together  as  we  are,  haul  off  from  Europe  as 
soon  as  we  can,  and  from  all  attachments  to  any  portion  of  it,"  &c.  (3  Jeff.  Mem.,  &c., 
393,) 


REPORT  OF  1799.  „  195 

can  incur  any  just  disapprobation  from  those  who,  laying  aside  all  momen- 
tary impressions,  and  recollecting  the  genuine  source  and  object  of  the 
Federal  Constitution,  shall  candidly  and  accurately  interpret  the  meaning 
of  the  General  Assembly.  If  the  deliberate  exercise  of  dangerous  powers, 
palpably  withheld  by  the  Constitution,  could  not  justify  the  parties  to  it, 

fin  interposing  even  so  far  as  to  arrest  the  progress  of  the  evil,  and  thereby 
to  preserve  the  Constitution  itself,  as  well  as  to  provide  for  the  safety  of 
the  parties  to  it,  there  would  be  an  end  to  all  relief  from  usurped  power, 
and  a  direct  subversion  of  the  rights  specified  or  recognised  under  all  the 
state  constitutions,  as  well  as  a  plain  denial  of  the  fundamental  principle 
on  which  our  independence  itself  was  declared, 

*JL    But  it  is  objected  that  the  judicial  authority  is  to  be  regarded  as  the  sole 

'  expositor  of  the  Constitution,  in  the  last  resort ;  and  it  may  be  asked  for 

what  reason,  the  declaration  by  the  General  Assembly,  supposing  it  to  be 

theoretically  true,  could  be  required  at  the  present  day  and  in  so  solemn 

a  manner. 

On  this  objection  it  might  be  observed,  first,  that  there  may  be  in- 
stances of  usurped  power,  which  the  forms  of  the  Constitution  would  never 
draw  within  the  control  of  the  judicial  department;*  secondly,  that 
if  the  decision  of  the  judiciary  be  raised  above  the  authority  of  the 

*  Judge  Story  holds  that  each  department  of  the  government,  and  each  member  of 
every  department,  is  the  interpreter  of  the  Constitution  for  itself,  in  the  first  instance, 
whenever  called  upon  to  act  under  it.  If  the  question  is  not  of  a  nature  to  be  capable 
of  a  judicial  decision,  he  considers  such  determination  by  the  department  called  on  to 
act, — whether  it  be  the  executive,  or  the  legislative, — to  be  final.  If  it  be  capable  of 
judicial  investigation,  he  regards  the  judicial  power  and  the  Supreme  Court  as  the 
head  thereof,  the  final  arbiter  of  the  constitutionality  of  the  act. 

As  to  the  second  observation  in  the  text,  that  the  judicial  department  may  also  exer- 
cise or  sanction  dangerous  powers,  not  granted  by  the  Constitution,  Judge  Story 
esteems  it  a  case  not  to  be  supposed,  or  that,  at  all  events,  the  people,  in  forming  the 
Constitution  for  the  Union, — in  like  manner  as  in  forming  the  state  constitutions, — 
have  relied  upon  the  judiciary  as  the  ultirpate  barrier  against  usurpation,  or  the  exercise 
of  unconstitutional  power. 

The  difference  between  these  views  is  certainly  marked,  but  it  is  less  considerable 
than  at  first  view  may  appear. 

According  to  the  text,  if  all  the  departments  of  government,  including  the  judiciary 
(where  the  question  is  of  a  nature  to  be  submitted  to  it,)  combine  to  commit  or  to  sane- 
tion,  a  deliberate,  palpable,  and  dangerous  violation  of  the  Constitution,  the  states,  as 
parties  to  the  Constitution,  may  determine,  in  the  last  resort,  whether  the  alleged  viola- 
tion has  occurred,  and  may  interpose  to  arrest  the  evil. 

Judge  Story  allows  of  no  interposition  by  the  states,  but  insists  that,  in  the  case 
supposed,  when  the  evil  has  become  no  longer  endurable,  resort  must  be  had,  by  the 
people,  and  not  by  the  states,  to  the  ultimate  right  of  resistance. 

Neither  construction  discards  resistance  to  dangerous  and  palpable  usurpation. 
They  only  differ  as  to  the  means  of  ascertaining  the  usurpation  in  the  last  resort,  and 
of  setting  on  foot  the  resistance,  when  ascertained.  The  one  refers  it  to  the  states  as 
sovereign  members  of  the  confederacy ;  the  other  to  the  people  exclusively.  (See  1 
Story's  Com.  on  Const.,  346  to  375.) 

The  constitutional  remedies  against  the  exercise  of  unconstitutional  power,  in  Judge 
Story's  opinion,  are : — if  the  Congress  be  the  offender,  an  appeal  to  the  elective  fran- 
chise, and,  if  need  be,  an  amendment  of  the  Constitution ;  if  the  executive  is  guilty, 
an  impeachment,  and  a  new  election ;  if  the  judiciary,  an  impeachment,  and  an  altera- 
tion, for  the  future,  of  the  bad  law  as  judicially  expounded. 


196  REPORT  OF  1799. 

sovereign  parties  to  the  Constitution,  the  decisions  of  the  other  depart- 
ments, not  carried  by  the  forms  of  the  Constitution  before  the  judiciary, 
must  be  equally  authoritative  and  final  with  the  decisions  of  that  de- 
partment. But  the  proper  answer  to  the  objection  is,  that  the  resolution 
of  the  General  Assembly  relates  to  those  great  and  extraordinary 
cases,  in  which  all  the  forms  of  the  Constitution  may  prove  ineffectual 
against  infractions  dangerous  to  the  essential  rights  of  the  parties  to  it. 
The  resolution  supposes  that  dangerous  powers,  not  delegated,  may  not 
only  be  usurped  and  executed  by  the  other  departments,  but  that  the  judi- 
cial department  also  may  exercise  or  sanction  dangerous  powers  beyond 
,  the  grant  of  the  Constitution;  and,  consequently,  that  the  ultimate  right  of 
the  parties  to  the  Constitution,  to  judge  whether  the  compact  has  been 
dahgerousty  violated,  must  extend  to  violations  by  one  delegated  autho- 
rity, as  well  as  by  another;  by  the  judiciary,  as  well  as  by  the  executive, 
or  the  legislature. 

However  true,  therefore,  it  may  be,  that  the  judicial  department,  is,  in 
all  questions  submitted  to  it  by  the  forms  of  the  Constitution,  to  decide  in 
the  last  resort,  this  resort  must  necessarily  be  deemed  the  last  in  relation 
to  the  authorities  of  the  other  departments  of  the  government;  not  in  rela- 
tion to  the  rights  of  the  parties  to  the  constitutional  compact,  from  which 
the  judicial  as  well  as  the  other  departments  hold  their  delegated  trusts. 
On  any  other  hypothesis,  the  delegation  of  judicial  power  would  annul  the 
authority  delegating  it ;  and  the  concurrence  of  this  department  with  the 
others  in  usurped  powers,  might  subvert  for  ever,  and  beyond  the  possible 
reach  of  any  rightful  remedy,  the  very  Constitution  which  all  were  insti- 
tuted to  preserve. 

The  truth  declared  in  the  resolution  being  established,  the  expediency 
of  making  the  declaration  at  the  present  day,  may  safely  be  left  to  the 
temperate  consideration  and  candid  judgment  of  the  American  public.     It 
will  be  remembered  that  a  frequent  recurrence  ta  fundamental  principles, 
is  solemnly  enjoined  by  most  of  the  state  constitutions,  and  particularly 
by  our  own,  as  a  necessary  safeguard  against  the  danger  of  degeneracy 
to  which  republics  are  liable,  as  well  as  other  governments,  though  in  a 
less  degree  than  others.     And  a  fair  comparison  of  the  political  doctrines 
not  unfrequent  at  the  present  day,  with  those  which  characterized  the 
epoch  of  our  revolution,  and  which  form  the  basis  of  our  republican  con- 
stitutions, will  best  determine  whether  the  declaratory  recurrence   here 
made  to  those  principles,  ought  to  be  viewed  as  unseasonable  and  improper, 
or  as  a  vigilant  discharge  of  an  important  duty.      The  authority  of  con-  \ 
/stitutions  over  governments,  and  of  the  sovereignty  of  the  people  over   j 
1  constitutions,  are  truths  which  are  at  all  times  necessary  to  be  kept  in  J 
\  mind ;  and  at  no  time  perhaps  more  necessary  than  at  the  present. 
*      The  fourth  resolution  stands  as  follows: 

That  the  General  Assembly  doth  also  express  its  deep  regret,  that  a 
spirit  has  in  sundry  instances,  been  manifested  by  the  federal  govern- 
ment, to  enlarge  its  powers  by  forced  constructions  of  the  constitutional 
charter  which  defines  them ;  and  that  indications  have  appeared  of  a 
design  to  expound  certain  general  phrases,  (which,  having  been  copied 


REPORT  OF  1799.  197 

from  the  very  limited  grant  of  powers  in  the  former  articles  of  confedera- 
tion, were  the  less  liable  to  be  misconstrued,)  so  as  to  destroy  the  meaning 
and  effect  of  the  particular  enumeration  which  necessarily  explains,  and 
limits  the  general  phrases  ;  and  so  as  to  consolidate  the  states,  by  degrees, 
into  one  sovereignty,  the  obvious  tendency  and  inevitable  result  of  which 
would  be,  to  transform  the  present  republican  system  of  the  United  States 
into  an  absolute,  or,  at  best,  a  mixed  monarchy. 

The  first  question  here  to  be  considered  is,  whether  a  spirit  has  in 
sundry  instances  been  manifested  by  the  Federal  Government  to  enlarge 
its  powers  by  forced  constructions  of  the  constitutional  charter. 

The  General  Assembly  having  declared  its  opinion  merely  by  re- 
gretting in  general  terms  that  forced  constructions  for  enlarging  the  fede- 
ral powers  have  taken  place,  it  does  not  appear  to  the  committee  neces- 
sary to  go  into  a  specification  of  every  instance  to  which  the  resolution 
may  allude.  The  alien  and  sedition-acts  being  particularly  named  in  a 
succeeding  resolution,  are  of  course  to  be  understood  as  included  in  the 
allusion.  Omitting  others  which  have  less  occupied  public  attention,  or 
been  less  extensively  regarded  as  unconstitutional,  the  resolution  may  be 
presumed  to  refer  particularly  to  the  bank  law,*  which  from  the  circum- 

*  The  bank  law  referred  to  is  that  of  1791.  Its  constitutionality  was  the  subject  of 
warm  discussion  in  Congress.  When  it  had  finally  passed  both  houses,  and  was  sub- 
mitted  to  the  President,  he  requested  the  opinions  of  the  members  of  the  cabinet  upon 
the  constitutional  question.  Mr.  Hamilton  deemed  the  law  constitutional.  An  outline 
of  his  argument  may  be  seen  in  2  Marshall's  Washington,  Notes,  p.  5.  Mr.  Jefferson's 
opinion,  which  he  has  himself  preserved,  was  adverse  to  the  power  of  Congress  to  in- 
corporate  a  bank.  (See  4  Jeff,  Mem.,  523.)  The  President,  after  considerable  hesita- 
tion, signed  the  bill.  That  charter  having  expired  in  1811,  Congress  then  refused,  in 
the  Senate  by  the  casting  vote  of  Geo.  Clinton,  the  Vice-President  of  the  United  States 
and  President  of  the  Senate,  to  renew  it.  In  1815,  a  bank  bill  passed  both  houses  of 
Congress,  but  encountered  the  veto  of  President  Madison,  on  the  score  of  some  objec- 
tional  provisions  contained  in  it.  But  two  years  afterwards  he  gave  his  sanction  to 
another  law  for  the  incorporation  of  a  bank,  justifying  his  disregard  of  the  constitu- 
tional objection,  which  in  1791  he  had  pressed  in  Congress  with  great  vigour,  upon  the 
ground  that  he  felt  himself  obliged  by  the  legislative  and  executive  precedents,  which 
had  occurred,  affirming  the  constitutionality  of  such  a  law.  (See  his  letter  to  Mr.  In- 
gersoll,  post,  p.  257,  and  his  veto  message  of  30th  Jan.,  1815.) 

The  question  of  the  validity  of  the  bank  law  of  1816  was  soon  brought  before  the 
federal  judiciary,  and  in  1819,  in  the  great  case  of  M'Culloch  v.  The  State  of  Mary- 
land, 4  Wheat.,  316,  the  Supreme  Court  pronounced,  by  the  mouth  of  C.  J.  Marshall, 
an  unanimous  and  decided  opinion  in  favour  of  its  constitutionality.  The  sentiment 
upon  the  subject  was  not  thereby  quieted,  however.  Judge  Roane,  of  Virginia,  re- 
viewed the  judgment  of  the  Supreme  Court  with  freedom  and  ability,  in  a  series  of  arti- 
cles first  published  in  the  Richmond  Enquirer,  in  June,  1819,  under  the  signature  of 
"  Hampden,"  and  amongst  the  people,  the  dissentients  were  numerous  and  influential. 
It  was  discussed  also,  along  with  several  other  constitutional  questions,  with  his  usual 
acuteness,  by  Mr.  John  Taylor  of  Caroline,  in  a  work  called  "Construction  Construed," 
which  deserves  more  readers  than,  by  reason  of  its  peculiarity  of  style,  it  has  had,  dr  is 
likely  to  have. 

In  July,  1832,  President  Jackson  vetoed  a  bill  renewing  the  charter  of  the  bank  for 
fifteen  years  from  1836,  resting  his  objections  in  part  upon  constitutional  grounds,  and 
in  part  upon  the  danger  to  the  institutions  of  the  country  from  so  large  a  moneyed  cor- 
poration. A  similar  fate,  at  the  hands  of  President  Tyler,  befell  two  other  laws  to  in- 
corporate a  national  bank  in  August  and  September,  1841. 


198  REPORT  OF  1799. 

stances  of  its  passage,  as  well  as  the  latitude  of  construction  on  which  it 
is  founded,  strikes  the  attention  with  singular  force  ;  and  the  carriage  tax,* 
distinguished  also  by  circumstances  in  its  history  having  a  similar  ten- 
dency. Those  instances,  alone,  if  resulting  from  forced  construction  and 
calculated  to  enlarge  the  powers  of  the  Federal  Government,  as  the  com- 
mittee cannot  but  conceive  to  be  the  case,  sufficiently  warrant  this  part 
of  the  resolution.  The  committee  have  not  thought  it  incumbent  on  them 
to  extend  their  attention  to  laws  which  have  been  objected  to,  rather  as 
varying  the  constitutional  distribution  of  powers  in  the  Federal  Govern- 
ment, than  as  an  absolute  enlargement  of  them  ;  because  instances  of  this 
sort,  however  important  in  their  principles  and  tendencies,  do  not  appear 
to  fall  strictly  within  the  text  under  review. 

The  other  questions  presenting  themselves,  are — 1.  Whether  indica- 
tions have  appeared  of  a  design  to  expound  certain  general  phrases  copied 
from  the  "  articles  of  confederation"  so  as  to  destroy  the  effect  of  the  par- 
ticular enumeration  explaining  and  limiting  their  meaning.  2.  Whether 
this  exposition  would  by  degrees  consolidate  the  states  into  one  sove- 
reignty. 3.  Whether  the  tendency  and  result  of  this  consolidation  would 
be  to  transform  the  republican  system  of  the  United  States  into  a  mo- 
narchy. 

*  The  act  of  Congress,  of  5th  June,  1794,  imposing  a  tax  on  carriages  for  the  con- 
veyance of  persons,  provoked  a  degree  of  opposition,  especially  in  Virginia,  the  reason 
of  which  it  is  not,  at  this  day,  easy  to  understand.  The  complaint  respecting  it  was 
that,  although  it  was  a  direct  tax,  yet  it  was  laid  uniformly  through  the  states,  instead 
of  being  apportioned  amongst  the  states,  as  the  Constitution  directs,  according  to  popu- 
lation. One  Hylton,  in  Virginia,  in  order  to  test  the  question,  refused  to  enter  certain 
carriages  which  he  acknowled  himself  to  possess,  and  an  action  having  been  instituted 
against  him,  in  pursuance  of  the  act,  by  the  District  Attorney,  in  the  name  of  the  Uni- 
ted States,  an  agreed  case  was  submitted  to  the  Court,  upon  which  a  pro  forma  judg- 
ment was  entered  against  the  defendant,  and  thereupon  he  obtained  a  writ  of  error 
from  the  Supreme  Court  of  the  United  States.  That  court  pronounced  the  carriage 
tax  not  to  be  a  direct  tax,  within  the  meaning  of  the  Constitution,  and  that  it  was  pro- 
per, therefore,  to  make  it  uniform.  Congress,  it  was  argued,  possesses  the  power  to 
tax  all  subjects  of  taxation,  without  limitation,  with  the  exception  of  a  duty  on  exports. 
There  are  two  restrictions  only,  on  the  exercise  of  this  authority  : — 1.  All  direct  taxes 
must  be  apportioned;  2.  All  duties,  imposts,  and  excises  must  be  uniform.  If  the  car- 
riage tax  were  not  a  direct  tax,  within  the  meaning  of  the  Constitution,  nor  a  duty, 
impost,  or  excise,  Congress  was  under  no  restriction,  as  to  the  mode  of  laying  it,  in 
which  case  the  tax  ought  to  be  uniform.  But  the  Constitution  could  not  have  meant 
by  a  direct  tax,  which  it  orders  to  be  apportioned,  one  which  could  not,  with  any  re- 
gard to  equality  of  burden,  be  apportioned,  and  if  the  tax  on  carriages  could  not  be 
equally  apportioned,  it  was,  for  that  reason,  not  a  direct  tax.  That  it  could  not  be  so 
apportioned  was  manifest,  since  the  number  of  carriages  in  the  several  states  bore  no 
relation  to  population,  and  consequently  the  tax  on  them  might  be  $10  in  one  state, 
and  $100  in  another.  The  Court  intimated  an  opinion  that  a  direct  tax,  in  the  sense 
of  the  Constitution,  could  mean  nothing  but  a  tax  on  what  is  inseparably  annexed  to 
the  soil,  or  otherwise  capable  of  apportionment,  under  all  circumstances,  according  to 
population,  such  as  a  tax  on  lands  or  persons,  including  slaves.  (Hylton  v.  U.  States,  3 
Da!l.,171.) 

^  This  view  seems  to  have  been  acquiesced  in,  and  when,  in  1813,  during  the  war  with 
Great  Britain,  it  was  deemed  expedient  to  resort  to  extraordinary  taxation,  a  tax  on 
carriages  was  again  imposed  according-  to  the  rule  of  uniformity.  (4  Laws  of  United 
States,  570.) 


REPORT  OF  1799.  199 

I.  The  general  phrases  here  meant  must  be  those  "  of  providing  for  the 
common  defence  and  general  welfare." 

In  the  "  articles  of  confederation,"  the  phrases  are  used  as  follows,  in 
Art.  VIII.  "  All  charges  of  war,  and  all  other  expenses  that  shall  be 
incurred  for  the  common  defence  and  general  welfare,  and  allowed  by  the 
United  Slates  in  Congress  assembled,  shall  be  defrayed  out  of  a  common 
treasury,  which  shall  be  supplied  by  the  several  states,  in  proportion  to 
the  value  of  all  land  within  each  state,  granted  to,  or  surveyed  for  any 
person,  as  such  land  and  the  buildings  and  improvements  thereon  shall  be 
estimated,  according  to  such  mode  as  the  United  States  in  Congress  as- 
sembled shall  from  time  to  time  direct  and  appoint." 

In  the  existing  Constitution,  they  make  the  following  part  of  Sec.  8, 
"The  Congress  shall  have  power  to  lay  and  collect  taxes,  duties,  imposts, 
and  excises,  to  pay  the  debts,  and  to  provide  for  the  common  defence  and 
general  welfare  of  the  United  States." 

This  similarity  in  the  use  of  these  phrases  in  the  two  great  federal 
charters,  might  well  be  considered,  as  rendering  their  meaning  less  liable 
to  be  misconstrued  in  the  latter;  because  it  will  scarcely  be  said,  that  in 
the  former  they  were  ever  understood  to  be  either  a  general  grant  of 
power,  or  to  authorize  the  requisition  or.  application  of  money  by  the  old 
Congress  to  the  common  defence  and  general  welfare,  except  in  the  cases 
afterwards  enumerated,  which  explained  and  limited  their  meaning ;  and 
if  such  was  the  limited  meaning  attached  to  these  phrases  in  the  very 
instrument  revised  and  remodelled  by  the  present  Constitution,  it  can 
never  be  supposed  that  when  copied  into  this  Constitution,  a  different 
meaning  ought  to  be  attached  to  them. 

That,  notwithstanding  this  remarkable  security  against  misconstruction, 
a  design  has  been  indicated  to  expound  these  phrases  in  the  Constitution, 
so  as  to  destroy  the  effect  of  the  particular  enumeration  of  powers  by 
which  it  explains  and  limits  them,  must  have  fallen  under  the  observation 
of  those  who  have  attended  to  the  course  of  public  transactions.  Not  to 
multiply  proofs  on  this  subject,  it  will  suffice  to  refer  to  the  debates  of  the 
federal  legislature,  in  which  arguments  have  on  different  occasions  been 
drawn,  with  apparent  effect,  from  these  phrases,  in  their  indefinite  mean- 
ing. 

To  these  indications  might  be  added,  without  looking  farther,  the  official 
report  on  manufactures,  by  the  late  Secretary  of  the  Treasury,  made  on 
the  5th  of  December,  1791  ;  and  the  report  of  a  committee  of  Congress, 
in  January,  1797,  on  the  promotion  of  agriculture.  In  the  first  of  these 
it  is  expressly  contended  to  belong  "  to  the  discretion  of  the  national  legis- 
lature to  pronounce  upon  the  objects  which  concern  the  general  welfare, 
and  for  which,  under  that  description,  an  appropriation  of  money  is  requi- 
site and  proper.  And  there  seems  to  be  no  room  for  a, doubt,  that  what- 
ever concerns  the  general  interests  of  LEARNING,  of  AGRICULTURE,  of 
MANUFACTURES,  and  of  COMMERCE,  are  within  the  sphere  of  the  national 
councils,  as  far  as  regards  the  application  of  money."*  The  latter  report 

*  This  report  on  manufactures,  by  Mr.  Hamilton,  is  an  elaborate  exposition  of  the 
protective  policy,  in  all  its  economical  bearings,  with  reference  especially  to  certain 


200  REPORT  OP  1799. 

assumes  the  same  latitude  of  power  in  the  national  councils,  and  applies  it 
to  the  encouragement  of  agriculture  by  means  of  a  society  to  be  established 
at  the  seat  of  government.*  Although  neither  of  these  reports  may 
have  received  the  sanction  of  a  law  carrying  it  into  effect,  yet,  on  the 
other  hand,  the  extraordinary  doctrine  contained  in  both,  has  passed 
without  the  slightest  positive  mark  of  disapprobation  from  the  authority  to 
which  it  was  addressed. 

Now,  whether  the  phrases  in  question  be  construed  to  authorize  every 
measure  relating  to  the  common  defence  and  general  welfare,  as  contended 
by  some;  or  every  measure  only  in  which  there  might  be  an  application 
of  money,  as  suggested  by  the  caution  of  others  ;  the  effect  must  sub- 
stantially be  the  same,  in  destroying  the  import  and  force  of  the  particular 
enumeration  of  powers  which  follow  these  general  phrases  in  the  Consti- 
tution. For  it  is  evident  that  there  is  not  a  single  power  whatever,  which 
may  not  have  some  reference  to  the  common  defence,  or  the  general 
welfare ;  nor  a  power  of  any  magnitude,  which,  in  its  exercise,  does  not 
involve  or  admit  an  application  of  money.  The  government,  therefore, 
which  possesses  power  in  either  one  or  other  of  these  extents,  is  a  govern- 
ment without  the  limitations  formed  by  a  particular  enumeration  of  powers  ; 
and  consequently,  the  meaning  and  effect  of  this  particular  enumeration 
is  destroyed  by  the  exposition  given  to  these  general  phrases. 

This  conclusion  will  not  be  affected  by  an  attempt  to  qualify  the  power 
over  the  "  general  welfare,"  by  referring  it  to  cases  where  the  general 
welfare  is  beyond  the  reach  of  separate  provisions  by  the  individual 
states  ;  and  leaving  to  these  their  jurisdictions,  in  cases  to  which  their 
separate  provisions  may  be  competent.  For,  as  the  authority  of  the  in- 
dividual states  must  in  all  cases  be  incompetent  to  general  regulations 

leading  articles,  such  as  fabrics  of  metals,  of  flax  and  hemp,  of  cotton,  of  wool,  of 
silk,  &c. 

The  constitutional  power  of  the  federal  government  to  apply  encouragement  ito 
manufactures,  he  disposes  of  very  summarily,  employing  a  process  of  reasoning  not  a 
little  formidable  to  those  who  desire  to  maintain  the  organization  of  that  government, 
as  one  of  specific  and  limited  powers.  The  sentence  quoted  in  the  text,  however, 
is  somewhat  qualified  by  what  follows.  "The  only  qualification,"  Mr.  Hamilton  pro- 
ceeds  to  observe,  "of  the  generality  of  the  phrase  in  question  which  seems  to  be  admis- 
sible, is  this,  that  the  object  to  which  an  appropriation  is  to  be  made  be  general  and 
not  local,  its  operation  extending  in  fact,  or  by  possibility,  throughout  the  Union,  and 
not  being  confined  to  a  particular  spot.  No  objection  ought  to  arise  to  this  construe- 
tion  from  a  supposition  that  it  would  imply  a  power  to  do  whatever  else  should  appear 
to  Congress  conducive  to  the  general  welfare.  A  power  to  appropriate  money,  with  this 
latitude,  which  is  granted,  too,  in  express  terms,  would  not  carry  a  power  to  do  any 
other  thing,  not  authorized  by  the  Constitution,  either  expressly  or  by  fair  implication." 
(See  the  Report,— 7  Amer.  State  Papers,  13uY) 

The  constitutional  question  involved  in  protective  duties  is  presented  on  both  sides 
in  2  Story's  Comm.  on  Const.,  429,  et  seq.,  and  520,  et  seq.  (See  Construction  Con- 
strued, 203,  and  Address  of  Phila.  Free-trade  Convention  of  1831.) 

This  report  will  be  found  20  Am.  State  Papers,  154.  It  proposed  to  establish  a 
society  under  the  patronage  of  the  general  government,  which  should  extend  its  influ- 
ence through  the  whole  country,  and  comprehend  the  extensive  object  of  national  im- 
provement, but  especially  the  promotion  of  agriculture.  Il  was  to  have  been  a  body 
corporate,  capable  of  holding  a  limited  amount  of  property,  and  was  to  be  composed, 
in  part,  of  the  members  of  Congress,  the  judges  of  the  Supreme  Court,  and  the  heads 
of  departments. 


REPORT  OF  1799.  201 

operating  through  the  whole,  the  authority  of  the  United  States  would  be 
extended  to  every  object  relating  to  the  general  welfare,  which  might,  by 
any  possibility,  be  provided  for  by  the  general  authority.  This  qualifying 
construction,  therefore,  would  have  little,  if  any  tendency,  to  circumscribe 
the  power  claimed  under  the  latitude  of  the  terms  "  general  welfare." 

The  true  and  fair  construction  of  this  expression,  both  in  the  original 
and  existing  federal  compacts,  appears  to  the  committee  too  obvious  to  be 
mistaken.  In  both,  the  Congress  is  authorized  to  provide  money  for  the 
common  defence  and  general  welfare.  In  both,  is  subjoined  to  this  au- 
thority, an  enumeration  of  the  cases  to  which  their  powers  shall  extend. 
Money  cannot  be  applied  to  the  general  welfare  otherwise  than  by  an 
application  of  it  to  some  particular  measures,  conducive  to  the  general 
welfare.  Whenever,  therefore,  money  has  been  raised  by  the  general 
authority,  and  is  to  be  applied  to  a  particular  measure,  a  question  arises 
whether  the  particular  measure  be  within  the  enumerated  authorities  vested 
in  Congress.  If  it  be,  the  money  requisite  for  it  may  be  applied  to  it ;  if 
it  be  not,  no  such  application  can  be  made.  This  fair  and  obvious  inter- 
pretation coincides  with,  and  is  enforced  by  the  clause  in  the  Constitution, 
which  declares,  that  "  no  money  shall  be  drawn  from  the  treasury,  but  in 
consequence  of  appropriations  by  law."  An  appropriation  of  money  to 
the  general  welfare  would  be  deemed  rather  a  mockery  than  an  observance 
of  this  constitutional  injunction. 

2.  Whether  the  exposition  of  the  general  phrases  here  combated  would 
not,  by  degrees,  consolidate  the  states  into  one  sovereignty,  is  a  question 
concerning  which  the  committee  can  perceive  little  room  for  difference  of 
opinion.     To  consolidate  the  states  into  one  sovereignty,  nothing  more 
can  be  wanted,  than  to  supersede  their  respective  sovereignties  in  the 
cases  reserved  to  them,  by  extending  the  sovereignty  of  the  United  States, 
to  all  cases  of  the  "  general  welfare,"  that  is  to  say,  to  all  cases  whatever. 

3.  That  the  obvious  tendency  and  inevitable  result  of  a  consolidation  of 
the  states  into  one  sovereignty,  would  be  to  transform  the  republican  sys- 
tem of  the  United  States  into  a  monarchy,  is  a  point  which  seems  to  have 
been  sufficiently  decided  by  the  general  sentiment  of  America.    In  almost 
every  instance  of  discussion,  relating  to  the  consolidation  in  question,  its 
certain  tendency  to  pave  the  way  to  monarchy  seems  not  to  have  been 
contested.     The  prospect  of  such  a  consolidation  has  formed   the  only 
topic  of  controversy.    It  would  be  unnecessary,  therefore,  for  the  commit- 
tee to  dwell  long  on  the  reasons  which  support  the  position  of  the  General 
Assembly.     It  may  not  be  improper,  however,  to  remark   two   conse- 
quences evidently  flowing  from  an  extension  of  the  federal  powers  to 
every  subject  falling  within  the  idea  of  the  "  general  welfare." 

One  consequence  must  be,  to  enlarge  the  sphere  of  discretion  allotted 
to  the  executive  magistrate.  Even  within  the  legislative  limits  properly 
defined  by  the  Constitution,  the  difficulty  of  accommodating  legal  regula- 
tions to  a  country  so  great  in  extent,  and  so  various  in  its  circumstances, 
has  been  much  felt ;  and  has  led  to  occasional  investments  of  power  in  the 
executive,  which  involve  perhaps  as  large  a  portion  of  discretion  as  can 
be  deemed  consistent  with  the  nature  of  the  executive  trust.  In  propor- 
tion as  the  objects  of  legislative  care  might  be  multiplied,  would  the  time 


202  REPORT  OF  1799. 

/ 

allowed  for  each  be  diminished,  and  the  difficulty  of  providing  uniform 
and  particular  regulations  for  all  be  increased.  From  these  sources  would 
necessarily  ensue  a  greater  latitude  to  the  agency  of  that  department  which 
is  always  in  existence,  and  which  could  best  mould  regulations  of  a  gene- 
ral nature,  so  as  to  suit  them  to  the  diversity  of  particular  situations.  And 
it  is  in  this  latitude,  as  a  supplement  to  the  deficiency  of  the  laws,  that  the 
degree  of  executive  prerogative  materially  consists.  • 

The  other  consequence  would  be  that  of  an  excessive  augmentation  of 
the  offices,  honours,  and  emoluments  depending  on  the  executive  will. 
Add  to  the  present  legitimate  stock,  all  those  of  every  description  which 
a  consolidation  of  the  states  would  take  from  them,  and  turn  over  to  the 
Federal1  Government,  and  the  patronage  of  the  executive  would  necessa- 
rily be  as  much  swelled  in  this  case,  as  its  prerogative  would  be  in  the 
other. 

This  disproportionate  increase  of  prerogative  and  patronage  must,  evi- 
dently, either  enable  the  chief  magistrate  of  the  Union,  by  quiet  means,  to 
secure  his  re-election  from  time  to  time,  and  finally,  to  regulate  the  suc- 
cession as  he  might  please;  or,  by  giving  so  transcendent  an  importance 
to  the  office,  would  render  the  elections  to  it  so  violent  and  corrupt,  that 
the  public  voice  itself  might  call  for  an  hereditary,  in  place  of  an  elective 
succession.  Whichever  of  these  events  might  follow,  the  transformation 
of  the  republican  system  of  the  United  States  into  a  monarchy,  anticipated 
by  the  General  Assembly  from  a  consolidation  of  the  states  into  one  sove- 
reignty, would  be  equally  accomplished;  and  whether  it  would  be  into  a 
mixed  or  an  absolute  monarchy,  might  depend  on  too  many  contingencies 
to  admit  of  any  certain  foresight. 

The  resolution  next  in  order,  is  contained  in  the  following  terms : 

That  the  General  Assembly  doth  particularly  protest  against  the  pal- 
pable and  alarming  infractions  of  the  Constitution^  in  the  two  late  cases 
of  the  «*  alien  and  sedition-acts"  passed  at  the  last  session  of  Congress  ; 
the  first  of  which  exercises  a  power  nowhere  delegated  to  the  Federal 
Government;  and  which,  by  uniting  legislative  and  judicial  powers  to 
those  of  executive,  subverts  the  general  principles  of  a  free  Government,  as 
well  as  the  particular  organization  and  positive  provisions  of  the  Federal 
Constitution  ;  and  the  oilier  of  which  acts  exercises,  in  like  manner,  a 
power  not  delegated  by  the  Constitution  ;  but,  on  the  contrary,  expressly 
and  positively  forbidden  by  one  of  the  amendments  thereto :  a  power  which, 
more  than  any  other,  ought  to  produce  universal  alarm  ;  because  it  is 
levelled  against  that  right  of  freely  examining  public  characters  and  mea- 
sures, and  of  free  communication  among  the  people  thereon,  which  has 
ever  been  justly  deemed  the  only  effectual  guardian  of  every  other  right. 

The  subject  of  this  resolution  having,  it  is  presumed,  more  particularly 
led  the  General  Assembly  into  the  proceedings  which  they  communicated 
to  the  other  states,  and  being  in  itself  of  peculiar  importance,  it  deserves 
the  most  critical  and  faithful  investigation ;  for  the  length  of  which  no 
other  apology  will  be  necessary. 

The  subject  divides  itself  inlofrst,  "The  alien-act,"  secondly,  "The 
sedition-act." 

I.  Of  the  "  alien-act,"  it  is  affirmed  by  the  resolution,  1st.  That  it 


REPORT  OF  1799.  203 

exercises  a  power  nowhere  delegated  to  the  Federal  Government.  2d. 
That  it  unites  legislative  and  judicial  powers  to  those  of  the  executive. 
3d.  That  this  union  of  power  subverts  the  general  principles  of  free 
government.  4th.  That  it  subverts  the  particular  organization  and  posi- 
tive provisions  of  the  Federal  Constitution. 

In  order  to  clear  the  way  for  a  correct  view  of  the  first  position,  several 
observations  will  be  premised. 

In  the  first  place,  it  is  to  be  borne  in  mind,  that  it  being  a  characteristic 
feature  of  the  Federal  Constitution,  as  it  was  originally  ratified,  and  an 
amendment  thereto  having  precisely  declared,  "That  the  powers  not 
delegated  to  the  United  States  by  the  Constitution,  nor  prohibited  by  it  to 
the  states,  are  reserved  to  the  states  respectively,  or  to  the  people,"  it  is 
incumbent  in  this,  as  in  every  other  exercise  of  power  by  the  Federal 
Government,  to  prove  from  the  Constitution,  that  it  grants  the  particular 
power  exercised. 

The  next  observation  to  be  made  is,  that  much  confusion  and  fallacy 
have  been  thrown  into  question,  by  blending  the  two  cases  of  aliens,  mem- 
bers  of  a  hostile  nation  ;  and  aliens,  members  of  friendly  nations"  These 
two  cases  are  so  obviously  and  so  essentially  distinct,  that  it  occasions  no 
little  surprise  that  the  distinction  should  have  been  disregarded :  and  the 
surprise  is  so  much  the  greater,  as  it  appears  that  the  two  cases  are 
actually  distinguished  by  two  separate  acts  of  Congress,  passed  at  the 
same  session,  and  comprised  in  the  same  publication  ;  the  one  providing 
for  the  case  of  "  alien  enemies  ;"  the  other  "  concerning  aliens"  indiscri- 
minately ;  and  consequently  extending  to  aliens  of  every  nation  in  peace 
and  amity  with  the  United  States.  With  respect  to  alien  enemies,  no 
doubt  has  been  intimated  as  to  the  federal  authority  over  them ;  the  Con- 
stitution having  expressly  delegated  to  Congress  the  power  to  declare  war 
against  any  nation,  and  of  course  to  treat  it  and  all  its  members  as  ene- 
mies. With  respect  to  aliens  who  are  not  enemies,  but  members  of  nations 
in  peace  and  amity  with  the  United  States,  the  power  assumed  by  the  act 
of  Congress  is  denied  to  be  constitutional ;  and  it  is  accordingly  against 
this  act,  that  the.  protest  of  the  General  Assembly  is  expressly  and  exclu- 
sively directed. 

A  third  observation  is,  that  were  it  admitted,  as  is  contended,  that  the 
"act  concerning  aliens"  has  for  its  object  not  a  penal,  but  a  preventive 
justice,  it  would  still  remain  to  be  proved  that  it  comes  within  the  consti- 
tutional power  of  the  federal  legislature ;  and  if  within  its  power,  that  the 
legislature  has  exercised  it  in  a  constitutional  manner. 

In  the  administration  of  preventive  justice,  the  following  principles  have 
been  held  sacred^:  that  some  probable  ground  of  suspicion  be  exhibited 
before  some  judicial  authority ;  that  it  be  supported  by  oath  or  affirma- 
tion ;  that  the  party  may  avoid  being  thrown  into  confinement,  by  finding 
pledges  or  sureties  for  his  legal  conduct  sufficient  in  the  judgment  of  some 
judicial  authority  ;  that  he  may  have  the  benefit  of  a  writ  of  habeas  corpus, 
and  thus  obtain  his  release,  if  wrongfully  confined ;  and  that  he  may  at 
any  time  be  discharged  from  his  recognizance,  or  his  confinement,  and 
restored  to  his  former  liberty  and  rights,  on  the  order  of  the  proper  judi- 
cial authority,  if  it  shall  see  sufficient  cause. 


204  REPORT  OF  1799. 

All  these  principles  of  the  only  preventive  justice  known  to  American 
jurisprudence  are  violated  by  the  alien-act.  The  ground  of  suspicion  is 
to  be  judged  of,  not  by  any  judicial  authority,  but  by  the  executive  magis- 
trate alone;  no  oath  or  affirmation  is  required;  if  the  suspicion  be  held 
reasonable  by  the  President,  he  may  order  the  suspected  alien  to  depart 
the  territory  of  the  United  States,  without  the  opportunity  of  avoiding  the 
sentence,  by  finding  pledges  for  his  future  good  conduct ;  as  the  President 
may  limit  the  time  of  departure  as  he  pleases,  the  benefit  of  the  writ  of 
habeas  corpus  may  be  suspended  with  respect  to  the  party,  although  the 
Constitution  ordains,  that  it  shall  not  be  suspended,  unless  when  the  pub- 
lic safety  may  require  it  in  case  of  rebellion  or  invasion,  neither  of  which 
existed  at  .the  passage  of  the  act ;  and  the  party  being  under  the  sentence 
of  the  President,  either  removed  from  the  United  States,  or  being  punished 
by  imprisonment,  or  disqualification  ever  to  become  a  citizen  on  convic- 
tion of  not  obeying  the  order  of  removal,  he  cannot  be  discharged  from 
the  proceedings  against  him,  and  restored  to  the  benefits  of  his  former 
situation,  ^although  the  highest  judicial  authority  should  see  the  most 
sufficient  cause  for  it. 

But,  in  the  last  place,  it  can  never  be  admitted,  that  the  removal  of 
aliens,  authorized  by  the  act,  is  to  be  considered,  not  as  punishment  for 
an  offence,  but  as  a  measure  of  precaution  and  prevention.  If  the  banish- 
ment of  an  alien  from  a  country  into  which  he  has  been  invited,  as  the 
asylum  most  auspicious  to  his  happiness;  a  country  where  he  may  have 
formed  the  most  tender  of  connexions,  where  he  may  have  vested  his  en- 
tire property,  and  acquired  property  of  the  real  and  permanent,  as  well  as 
the  movable  and  temporary  kind  ;  where  he  enjoys  under  the  laws  a 
greater  share  of  the  blessings  of  personal-  security  and  personal  liberty 
than  he  can  elsewhere  hope  for,  and  where  he  may  have  nearly  completed 
his  probationary  title  to  citizenship;  if,  moreover,  in  the  execution  of  the 
sentence  against  him,  he  is  to  be  exposed,  not  only  to  the  ordinary  dan- 
gers of  the  sea,  but  to  the  peculiar  casualties  incident  to  a  crisis  of  war, 
and  of  unusual  licentiousness  on  that  element,  and  possibly  to  vindictive 
purposes  which  his  emigration  itself  may  have  provoked;  if  a  banishment 
of  this  sort  be  not  a  punishment,  and  among  the  severest  of  punishments, 
it  will  be  difficult  to  imagine  a  doom  to  which  the  name  can  be  applied. 
And  if  it  be  a  punishment,  it  will  remain  to  be  inquired,  whether  it  can  be 
constitutionally  inflicted,  on  mere  suspicion,  by  the  single  will  of  the 
executive  magistrate,  on  persons  convicted  of  no  personal  offence  against 
the  laws  of  the  land,  nor  involved  in  any  offence  against  the  law  of  na- 
tions, charged  on  the  foreign  state  of  which  they  are  members. 

One  argument  offered  in  justification  of  this  power  exercised  over  aliens 
is,  that  the  admission  of  them  into  the  country  being  of  favour,  not  of 
right,  the  favour  is  at  all  times  revocable. 

To  this  argument  it  might  be  answered,  that  allowing  the  truth  of  the 
inference,  it  would  be  no  proof  of  what  is  required.  A  question  would 
still  occur,  whether  the  Constitution  had  vested  the  discretionary  power  of 
admitting  aliens  in  the  federal  government,  or  in  the  state  governments. 

But  it  cannot  be  a  true  inference,  that  because  the  admission  of  an  alien 
is  a  favour,  the  favour  may  be  revoked  at  pleasure.  A  grant  of  land  to 


REPORT  OF  1799.  205     . 

an  individual  may  be  of  favour,  not  of  right ;  but  the  moment  the  grant  is 
made,  the  favour  becomes  a  right,  and  must  be  forfeited  before  it  can  be 
taken  away.  To  pardon  a  malefactor  may  be  favour,  but  the  pardon  is 
not,  on  that  account,  the  less  irrevocable.  To  admit  an  alien  to  naturali- 
zation is  as  much  a  favour,  as  to  admit  him  to  reside  in  the  country  ;  yet 
it  cannot  be  pretended,  that  a  person  naturalized  can  be  deprived  of  the 
benefit,  any  more  than  a  native  citizen  can  be  disfranchised.* 

Again,  it  is  said,  that  aliens  not  being  parties  to  the  Constitution,  the 
rights  and  privileges  which  it  secures  cannot  be  at  all  claimed  by  them. 

To  this  reasoning,  also,  it  might  be  answered,  that  although  aliens  ar£ 
not  parties  to  the  Constitution,  it  does  not  follow  that  the  Constitution  has 
vested  in  Congress  an  absolute  power  over  them.  The  parties  to  the  Con- 
stitution may  have  granted,  or  retained,  or  modified  the  power  over  aliens, 
without  regard  to  that  particular  consideration. 

But  a  more  direct  reply  is,  that  it  does  not  follow,  because  aliens  are 
not  parties  to  the  Constitution's  citizens  are  parties  to  it,  that  whilst  they 
actually  conform  to  it,  they  have  no  right  to  its  protection.  Aliens  are 
not  more  parties  to  the  laws,  than  they  are  parties  to  the  Constitution ; 
yet,  it  will  not  be  disputeo1,  that  as  they  owe,  on  one  hand,  a  temporary 
obedience,  they  are  entitled  in  return  to  their  protection  and  advantage. 

If  aliens  had  no  rights  under  the  Constitution,  they  might  not  only  be 
banished,  but  even  capitally  punished,  without  a  jury  or  the  other  inci- 
dents to  a  fair  trial.  But  so  far  has  a  contrary  principle  been  carried,  in 
every  part  of  the  United  States,  that  except  on  charges  of  treason,  an  alien 
has,  besides  all  the  common  privileges,  the  special  one  of  being  tried  by  a 
jury,  of  which  one-half  may  be  also  aliens. 

It  is  said,  further,  that  by  the  law  and  practice  of  nations,  aliens  may 
be  removed  at  discretion,  for  offences  against  the  law  of  nations;  that 
Congress  are  authorized  to  define  and  punish  such  offences ;  and  that  to 
be  dangerous  to  the  peace  of  society  is,  in  aliens,  one  of  those  offences. 

The  distinction  between  alien  enemies  and  alien  friends,  is  a  clear  and 
conclusive  answer  to  this  argument.  Alien  enemies  are  under  the  law  of 
nations,  and  liable  to  be  punished  for  offences  against  it.  Alien  friends, 
except  in  the  single  case  of  public  ministers,  are  under  the  municipal  law, 
and  must  be  tried  and  punished  according  to  that  law  only. 

This  argument  also,  by  referring  the  alien-act  to  the  power  of  Con- 
gress to  define  and  punish  offences  against  the  law  of  nations,  yields  the 
point  that  the  act  is  of  a  penal,  not  merely  of  a  preventive  operation.  It 
must,  in  truth,  be  so  considered.  And  if  it  be  a  penal  act,  the  punishment 
it  inflicts,  must  be  justified  by  some  offence  that  deserves  it. 

Offences  for  which  aliens,  within  the  jurisdiction  of  a  country,  are 

*  This  argument,  extending  as  it  does,  to  governments  of  general,  as  well  as  to 
those  of  specified  powers,  is  pressed  too  far.  A  state  may  prescribe  what  conditions 
it  will  to  the  admission  of  aliens,  and  amongst  others,  the  condition  which,  indeed, 
may  well  be  understood  as  implied,  of  dismissal  when  their  presence  becomes  disa- 
greeable. (Vattel,  B.  II.  §§  94,  100,  and  101.)  Whether  the  power  to  prescribe  condi- 
tions has  been-conferred,  in  our  system,  upon  the  federal  or  the  state  governments,  or 
upon  neither,  is  a  different  question. 

t  As  to  aliens  domiciled  in  a  foreign  country,  see  Vatt.  B.  I.,  §  213.  As  to  aliens 
merely  sojourning  temporarily,  see  ib.  B.  II.,  §  102. 


206  REPORT  OF  1799. 

punishable,  are  first,  offences  committed  by  the  nation  of  which  they  make 
a  part,  and  in  whose  offences  they  are  involved :  Secondly,  offences  com- 
mitted by  themselves  alone,  without  any  charge  against  the  nation  to 
which  they  belong.  The  first  is  the  case  of  alien  enemies ;  the  second, 
the  case  of  alien  friends.  In  the  first  case,  the  offending  nation  can  no 
otherwise  be  punished  than  by  war,  one  of  the  laws  of  which  authorizes 
the  expulsion  of  such  of  its  members,  as  may  be  found  within  the  country, 
against  which  the  offence  has  been  committed.  In  the  second  case,  the 
offence  being  committed  by  the  individual,  not  by  his  nation,  and  against 
tfce  municipal  law,  not  against  the  law  of  nations,  the  individual  only,  and 
not  the  nation,  is  punishable;  and  the  punishment  must  be  conducted 
according  to  the  municipal  law,  not  according  to  the  law  of  nations.  Un- 
der this  view  of  the  subject,  the  act  of  Congress,  for  the  removal  of  alien 
enemies,  being  conformable  to  the  law  of  nations,  is  justified  by  the  Con- 
stitution :  and  the  "  act,"  for  the  removal  of  alien  friends,  being  repugnant 
to  the  constitutional  principles  of  municipal  law,  is  unjustifiable. 

Nor  is  the  act  of  Congress,  for  the  removal  of  alien  friends,  more  agree- 
able to  the  general  practice  of  nations,  than  it  is  within  the  purview  of  the 
law  of  nations.  The  general  practice  of  nations,-  distinguishes  between 
alien  friends  and  alien  enemies.  The  latter  it  has  proceeded  against, 
according  to  the  law  of  nations,  by  expelling  them  as  enemies.*  The 
former  it  has  considered  as  under  a  local  and  temporary  allegiance, 
and  entitled  to  a  correspondent  protection.  If  contrary  instances  are 
to  be  found  in  barbarous  countries,  under  undefined  prerogatives,  or 
amid  revolutionary  dangers,  they  will  not  be  deemed  fit  precedents  for 
the  government  of  the  United  States,  even  if  not  beyond  its  constitu- 
tional authority. 

It  is  said,  that  Congress  may  grant  letters  of  marque  and  reprisal ;  that 
reprisals  may  be  made  on  persons,  as  well  as  property ;  and  that  the 
removal  of  aliens  may  be  considered  as  the  exercise  in  an  inferior  degree, 
of  the  general  power  of  reprisal  on  persons. 

Without  entering  minutely  into  a  question  that  does  not  seem  to  require 
it,  it  may  be  remarked,  that  reprisal  is  a  seizure  of  foreign  persons  or 
property,  with  a  view  to  obtain  that  justice  for  injuries  done  by  one  state 
or  its  members,  to  another  state  or  its  members,  for  which,  a  refusal  of 
the  aggressor  requires  such  a  resort  to  force  under  the  law  of  nations.  It 
must  be  considered  as  an  abuse  of  words  to  call  the  removal  of  persons 
from  a  country,  a  seizure  or  reprisal  on  them:  nor  is  the  distinction  to  be 
overlooked  between  reprisals  on  persons  within  the  country  and  under  the 
faith  of  its  laws,  and  on  persons  out  of  the  country.^ 

But,  laying  aside  these  considerations,  it  is  evidently  impossible  to  bring 

*  Vatt.  B.  III.,  §  63. 

t  The  idea  that  reprisals  cannot  lawfully  be  made  upon  persons,  or  property  within 
the  country,  and  under  the  faith  of  its  laws,  is  plainly  not  necessary  to  the  argument. 
The  proposition  that  such  reprisals  are  inadmissible  is  sustained  by  the  authority  of 
Vattel  (B.  II.,  §  344,  and  B.  III.,  §  63,)  and  others,  and  is  certainly  conformable  to  the 
general  usage  of  nations.  If  a  state  chooses,  however,  to  adopt  a  less  liberal  policy, 
it  cannot,  for  so  doing,  be  reproached  with  the  violation  of  any  priaciple  of  inter- 
national  law.  (See  Martens'  Summ.  B.  VIII.,  c.  ii.,  §  5.  The  Boedes-Lust,  5  Rob. 
Adm'y  Rep.  246.  Brown  v.  United  States,  8  Cranch,  121.) 


REPORT  OF  1799.  207 

the  alien-act  within  the  power  of  granting  reprisals ;  since  it  does  not 
allege  or  imply  any  injury  received  from  any  particular  nation,  for  which 
this  proceeding  against  its  members  was  intended  as  a  reparation.  The 
proceeding  is  authorized  against  aliens  of  every  nation;  of  nations  charged 
neither  with  any  similar  proceeding  against  American  citizens,  nor  with 
any  injuries  for  which  justice  might  be  sought,  in  the  mode  prescribed  by 
the  act.  Were  it  true,  therefore,  that  good  causes  existed  for  reprisals 
against  one  or  more  foreign  nations,  and  that  neither  persons  nor  property 
of  its  members,  under  the  faith  of  our  laws,  could  plead  an  exemption,  the 
operation  of  the  act  ought  to  have  been  limited  to  the  aliens  among  us, 
belonging  to  such  nations.  To  license  reprisals  against  all  nations,  for 
aggressions  charged  on  one  only,  would  be  a  measure  as  contrary  to  every 
principle  of  justice  and  public  law,  as  to  a  wise  policy,  and  the  universal 
practice  of  nations. 

It  is  said,  that  the  right  of  removing  aliens  is  an  incident  to  the  power 
of  war,  vested  in  Congress  by  the  Constitution. 

This  is  a  former  argument  in  a  new  shape  only;  and  is  answered  by  re- 
peating, that  the  removal  of  alien  enemies  is  an  incident  to  the  power  of  war ; 
that  the  removal  of  alien  friends,  is  not  an  incident  to  the  power  of  war. 

It  is  said,  that  Congress  are  by  the  Constitution  to  protect  each  state 
against  invasion ;  and  that  the  means  of 'preventing  invasion  are  included 
in  the  power  o£  protection  against  it. 

The  power  of  war  in  general,  having  been  before  granted  by  the  Con- 
stitution, this  clause  must  either  be  a  mere  specification  for  greater  caution 
and  certainty,  of  which  there  are  other  examples  in  the  instrument,  or  be 
the  injunction  of  a  duty,  superadded  to  a  grant  of  the  power.  Under  either 
explanation,  it  cannot  enlarge  the  powers  of  Congress  on  the  subject.  The 
power  and  the  duty  to  protect  each  state  against  an  invading  enemy,  would 
be /he  same  under  the  general  power,  if  this  regard  to  greater  caution  had 
been  omitted. 

Invasion  is  an  operation  of  war.  To  protect  against  invasion  is  an 
exercise  of  the  power  of  war.  A  power,  therefore,  not  incident  to  war, 
cannot  be  incident  to  a  particular  modification  of  war.  And  as  the  removal 
of  alien  friends,  has  appeared  to  be  no  incident  to  a  general  state  of  war, 
it  cannot  be  incident  to  a  partial  state,  or  a  particular  modification  of 
war. 

Nor  can  it  ever  be  granted,  that  a  power  to  act  on  a  case  when  it  actu- 
ally occurs,  includes  a  power  over  all  the  means  that  may  tend  to  prevent 
the  occurrence  of  the  case.  Such  a  latitude  of  construction  would  render 
unavailing  every  practicable  definition  of  particular  and  limited  powers. 
Under  the  idea  of  preventing  war  in  general,  as  well  as  invasion  in  par- 
ticular, not  only  an  indiscriminate  removal  of  all  aliens  might  be  .enforced, 
but  a  thousand  other  things  still  more  remote  from  the  operations  and 
precautions  appurtenant  to  war,  might  take  place.  A  bigoted  or  tyran- 
nical nation  might  threaten  us  with  war,  unless  certain  religious  or  politi- 
cal regulations  were  adopted  by  us;  yet  it  never  could  be  inferred,  if  the 
regulations  which  would  prevent  war,  were  such  as  Congress  had  other- 
wise no  power  to  make,  that  the  power  to  make  them  would  grow  out  of 
the  purpose  they  were  to  answer.  Congress  have  power  to  suppress  in- 


208  REPORT  OF  1799. 

surrections,  yet  it  wotild  not  be  allowed  to  follow,  that  they  might  employ 
all  the  means  tending  to  prevent  them  ;  of  which  a  system  of  moral  in- 
struction for  the  ignorant,  and  of  provident  support  for  the  poor,  might  be 
regarded  as  among  the  most  efficacious. 

One  argument  for  the  power  of  the  general  government  to  remove 
aliens,  would  have  been  passed  in  silence,  if  it  had  appeared  under  any 
authority  inferior  to  that  of  a  report^  made  during  the  last  session  of 
Congress,  to  the  House  of  Representatives  by  a  committee,  and  approved 
by  the  House.  The  doctrine  on  which  this  argument  is  founded,  is  of  so 
new  and  so  extraordinary  a  character,  and  strikes  so  radically  at  the 
political  system  of  America,  that  it  is  proper  to  state  it  in  the  very  words 
of  the  report.  • 

"  The  act  [concerning  aliens]  is  said  to  be  unconstitutional,  because  to 
remove  aliens  is  a  direct  breach  of  the  Constitution,  which  provides,  by  the 
9th  section  of  the  1st  article,  that  the  migration  or  importation  of  such 
persons  as  any  of  the  states  shall  think  proper  to  admit,  shall  not  be  pro- 
hibited by  the  Congress,  prior  to  the  year  1808." 

Among  the  answers  given  to  this  objection  to  the  constitutionality  of  the 
act,  the  following  very  remarkable  one  is  extracted  : 

"Thirdly,  that  as  the  Constitution  has  given  to  the  states  no  power  to  re- 
move aliens,  during  the  period  of  the  limitation  under  consideration,  in 
the  mean  time,  on  the  construction  assumed,  there  would  be  no  authority 
in  the  country,  empowered  to  send  away  dangerous  aliens,  which  cannot 
be  admitted."* 

The  reasoning  here  used,  would  not  in  any  view,  be  conclusive ;  be- 
cause there  are  powers  exercised  by  most  other  governments,  which  in 
the  United  States  are  withheld  by  the  people,  both  from  the  general  go- 
vernment, and  from  the  state  governments.  Of  this  sort  are  many  of  the 
powers  prohibited  by  the  declarations  of  right  prefixed  to  the  constitutions, 
or  by  the  clauses  in  the  constitutions,  in  the  nature  of  such  declarations. 
Nay,  so  far  is  the  political  system  of  the  United  States  distinguishable  from 
that  of  other  countries,  by  the  caution  with  which  powers  are  delegated  and 
defined,  that  in  one  very  important  case,  even  of  commercial  regulations 
and  revenue,  the  power  is  absolutely  locked  up  against  the  hands  of  both 
governments.  A  tax  on  exports  can  be  laid  by  no  constitutional  authority 
whatever.  Under  a  system  thus,  peculiarly  guarded,  there  could  surely 
be  no  absurdity  in  supposing,  that  alien  friends,  who  if  guilty  of  treason- 
able machinations  may  be  punished,  or  if  suspected  on  probable  grounds, 
may  be  secured  by  pledges  or  imprisonment,  in  like  manner  with  perma- 
nent citizens,  were  never  meant  to  be  subjected  to  banishment  by  any 
arbitrary  and  unusual  process,  either  under  the  one  government  or  the 
other.  t 

But,  it  is  not  the  inconclusiveness  of  the  general  reasoning  in  this  pas- 
sage, which  chiefly  calls  the  attention  to  it.  It  is  the  principle  assumed 
by  it,  that  the  powers  held  by  the  states,  are  given  to  them  by  the  Consti- 

*  The  argument  contained  in  the  report  here  referred  to,  (which  may  be  seen  20  Am. 
State  Papers,  181),  in  vindication  of  the  constitutionality  of  the  alien  and  sedition  laws, 
is  condensed,  but  able.  It  will  repay  the  perusal  of  the  diligent  student,  who  desire* 
audire  et  alterant  partem. 


REPORT  OF  1799.  209 

tution  of  the  United  States ;  and  the  inference  from  this  principle,  that 
the  powers  supposed  to  be  necessary  which  are  not  so  given  to  state  go- 
vernments, must  reside  in  the  government  of  the  United  States. 

The  respect,  which  is  felt  for  every  portion  of  the  constituted  authorities, 
forbids  some  of  the  reflections  which  this  singular  paragraph  might  excite  ; 
and  they  are  the  more  readily  suppressed,  as  it  may  be  presumed,  with 
justice  perhaps,  as  well  as  candour,  that  inadvertence  may  have  had  its 
share  in  the  error.  It  would  be  an  unjustifiable  delicacy,  nevertheless, 
to  pass  by  so  portentous  a  claim,  proceed  ing- from  so  high  an  authority, 
without  a  monitory  notice  of  the  fatal  tendencies  with  which  it  would  be 
pregnant. 

Lastly,  it  is  said,  that  a  law  on  the  same  subject  with  the  alien-act,  passed 
by  this  state  originally  in  1785,  and  re-enacted  in  1792,  is  a  proof  that 
a  summary  removal  of  suspected  aliens,  was  not  heretofore  regarded  by 
the  Virginia  Legislature,  as  liable  to  the  objections  now  urged  against  such 
a  measure. 

This  charge  against  Virginia  vanishes  before  the  simple  remark,  that 
the  law  of  Virginia  relates  to  "  suspicious  persons  being  the  subjects  of 
any  foreign  power  or  state,  who  shall  have  made  a  declaration  of  war,  or 
actually  commenced  hostilities,  or  from  whom  the  President  shall  appre- 
hend hostile  designs ;"  whereas  the  act  of  Congress  relates  to  aliens, 
being  the  subjects  of  foreign  powers  and  states,  who  have  neither  de- 
clared war,  nor  commenced  hostilities,  nor  from  whom  hostile  designs  are 
apprehended. 

2.  It  is  next  affirmed  of  the  alien  act,  that  it  unites  legislative,  judicial, 
and  executive  powers  in  the  hands  of  the  President. 

However  difficult  it  may  be  to  mark,  in  every  case,  with  clearness  and 
certainty,  the  line  which  divides  legislative  power,  from  the  other  depart- 
ments of  power,  all  will  agree,  that  the  powers  referred  to  these  depart- 
ments may  be  so  general  and  undefined,  as  to  be  of  a  legislative,  not  of 
an  executive  or  judicial  nature;  and  may  for  that  reason  be  unconstitu- 
tional. Details  to  a  certain  degree,  are  essential  to  the  nature  and  cha- 
racter of  a  law ;  and  on  criminal  subjects,  it  is  proper,  that  details  should 
leave  as  little  as  possible  to  the  discretion  of  those  who  are  to  apply  and 
to  execute  the  law.  If  nothing  more  were  required,  in  exercising  a  legis- 
lative trust,  than  a  general  conveyance  of  authority,  without  laying  down 
any  precise  rules,  by  which  the  authority  conveyed  should  be  carried 
into  effect ;  it  would  follow,  that  the  whole  power  of  legislation  might  be 
transferred  by  the  legislature  from  itself,  and  proclamations  might  become 
substitutes  for  laws.  A  delegation  of  power  in  this  latitude,  would  not  be 
denied  to  be  a  union  of  the  different  powers. 

To  determine,  then,  whether  the  appropriate  powers  of  the  distinct  de- 
partments are  united  by  the  act  authorizing  the  executive  to  remove  aliens, 
it  must  be  inquired  whether  it  contains  such  details,  definitions  and  rules, 
as  appertain  to  the t true  character  of  a  law;  especially,  a  law  by  which 
personal  liberty  is  invaded,  property  deprived  of  its  value  to  the  owner, 
and  life  itself  indirectly  exposed  to  danger. 

The  alien-act  declares,  "that  it  shall  be  lawful  for  the  President  to  order 
all  such  aliens  as  he  shall  judge  dangerous  to  the  peace  and  safety  of  the 


210  REPORT  OP  1799. 

United  States,  or  shall  have  reasonable  ground  to  suspect,  are  concerned 
in  any  treasonable,  or  secret  machinations,  against  the  government  thereof, 
to  depart,"  &c. 

Could  a  power  be  well  given  in  terms  less  definite,  less  particular,  and 
less  precise?  To  be  dangerous  to  the  public  safety;  to  be  suspected  of 
secret  machinations  against  the  government :  these  can  never  be  mistaken 
for  legal  rules  or  certain  definitions.  They  leave  everything  to  the 
President.  His  will  is  the  law. 

But,  it  is  not  a  legislative  power  only,  that  is  given  to  the  President. 
He  is  to  stand  in  the  place  of  the  judiciary  also.  His  suspicion  is  the  only 
evidence  which  is  to  convict :  his  order,  the  only  judgment  which  is  to  be 
executed. 

Thus,  it  is  the  President  whose  will  is  to  designate  the  offensive  con- 
duct ;  it  is  his  will  that  is  to  ascertain  the  individuals  on  whom  it  is 
charged ;  and  it  is  his  will,  that  is  to  cause  the  sentence  to  be  executed. 
It  is  rightly  affirmed,  therefore,  that  the  act  unites  legislative  and  judicial 
powers  to  those  of  the  executive. 

3.  It  is  affirmed,  that  this  union  of  power  subverts  the  general  princi- 
ples of  free  government. 

It  has  become  an  axiom  in  the  science  of  government,  that  a  separation 
of  the  legislative,  executive,  and  judicial  departments,  is  necessary  to  the 
preservation  of  public  liberty.*  Nowhere  has  this  axiom  been  better 
understood  in  theory,  or  more  carefully  pursued  in  practice,  than  in  the 
United  States. 

4.  It  is  affirmed  that  such  a  union  of  powers  subverts  the  particular 
organization  and  positive  provisions  of  the  Federal  Constitution. 

According  to  the  particular  organization  of  the  Constitution,  its  legisla- 
tive powers  are  vested  in  the  Congress,  its  executive  powers  in  the  Presi- 
dent, and  its  judicial  powers  in  a  supreme  and  inferior  tribunals.  The 
union  of  any  two  of  these  powers,  and  still  more  of  all  three,  in  any  one 
of  these  departments,  as  has  been  shown  to  be  done  by  the  alien-act,  must 
consequently  subvert  the  constitutional  organization  of  them. 

That  positive  provisions,  in  the  Constitution,  securing  to  individuals  the 
benefits  of  fair  trial,  are  also  violated  by  the  union  of  powers  in  the  alien- 
act,  necessarily  results  from  the  two  facts,  that  the  act  relates  to  alien 
friends,  and  that  alien  friends  being  under  the  municipal  law  only,  are 
entitled  to  its  protection. 

II.  The  second  object  against  which  the  resolution  protests,  is  the  sedi- 
tion-act. 

Of  this  act  it  is  affirmed,  1.  That  it  exercises  in  like  manner  a  power 
not  delegated  by  the  Constitution.  2.  That  the  power,  on  the  contrary, 
is  expressly  and  positively  forbidden  by  one  of  the  amendments  to  the 
Constitution.  3.  That  this  is  a  power,  which  more  than  any  other  ought  to 
produce  universal  alarm;  because  it  is  levelled  against  that  right  of  freely 
examining  public  characters  and  measures,  and  of  free  communication 
thereon,  which  has  ever  been  justly  deemed  the  only  effectual  guardian  of 
every  other  right. 

*  Montesq.  Sp.  Law.  B.  XI.  c.  6. 


REPORT  OF  1799.  811 

1.  That  it  exercises  a  power  not  delegated  by  the  Constitution. 

Here  again,  it  will  be  proper  to  recollect,  that  the  Federal  Government 
being  composed  of  powers  specifically  granted,  with  a  reservation  of  all 
others  to  the  states  or  to  the  people,  the  positive  authority  under  which  the 
sedition-act  could  be  passed  must  be  produced  by  those  who  assert  its  con- 
stitutionality. In  what  part  of  the  Constitution,  then,  is  this  authority  to 
be  found  ? 

Several  attempts  have  been  made  to  answer  this  question,  which  will 
be  examined  in  their  order.  The  committee  will  begin  with  one,  which 
has  filled  them  with  equal  astonishment  and  apprehension;  and  which, 
they  cannot  but  persuade  themselves,  must  have  the  same  effect  on  all, 
who  will  consider  it  with  coolness  and  impartiality,  and  with  a  reverence 
for  our  Constitution,  in  the  true  character  in  which  it  issued  from  the 
sovereign  authority  of  the  people.  The  committee*  refer  to  the  doctrine 
lately  advanced  as  a  sanction  to  the  sedition-act,  "  that  the  common  or  un- 
written law,"  a  law  of  vast  extent  and  complexity,  and  embracing  almost 
every  possible  subject  of  legislation,  both  civil  and  criminal,  makes  a  part 
of  the  law  of  these  states,  in  their  united  and  national  capacity.* 

The  novelty  and,  in  the  judgment  of  the  committee,  the  extravagance 
of  this  pretension,  would  have  consigned  it  to  the  silence  in  which  they 
have  passed  by  other  arguments,  which  an  extraordinary  zeal  for  the  act 
has  drawn  into  the  discussion :  But  the  auspices  under  which  this  inno- 
vation presents  itself,  have  constrained  the  committee  to  bestow  on  it  an 
attention,  which  other  considerations  might  have  forbidden. 

In  executing  the  task,  it  may  be  of  use  to  look  back  to  the  colonial 
state  of  this  country,  prior  to  the  Revolution;  to  trace  the  effects  of  the 
Revolution  which  converted  the  colonies  into  independent  states  ;  to  inquire 
into  the  import  of  the  articles  of  confederation,  the  first  instrument  by 
which  the  union  of  the  states  was  regularly  established  ;  and  finally,  to 
consult  the  Constitution  of  1788,  which  is  the  oracle  that  must  decide  the 
important  question. 

In  the  state,  prior  to  the  Revolution,  it  is  certain  that  the  common  law, 
under  different  limitations,  made  a  part  of  the  colonial  codes.  But  whether 
it  be  understood  that  the  original  colonists  brought  the  law  with  them,  or 
made  it  their  law  by  adoption ;  it  is  equally  certain,  that  it  was  the  sepa- 
rate law  of  each  colony  within  its  respective  limits,  and  was  unknown 
to  them,  as  a  law  pervading -and  operating  through  the  whole,  as  one 
society. 

It  could  not  possibly  be  otherwise.  The  common  law  was  not  the  same 
in  any  two  of  the  colonies ;  in  some,  the  modifications  were  materially 
and  extensively  different.  There  was  no  common  legislature,  by  which  a 
common  will  could  be  expressed  in  the  form  of  a  law  ;  nor  any  common 
magistracy,  by  which  such  a  law  could  be  carried  into  practice.  The 
will  of  each  colony,  alone  and  separately,  had  its  organs  for  these  pur- 


*  The  argument  that  the  sedition-act  was  justified  by  the  common  law,  and  that  the 
common  law  is  part  of  the  law  of  the  Federal  Government,  is  stated  at  length  by  Mr. 
George  K.  Taylor,  in  the  debate  on  the  resolutions,  Ante,  p.  133,  et  seq.  See,  also,  1 
Tuck.  Bl.  Part  I.  Appendix,  p.  378,  n.  £. 


212  REPORT  OP  1799. 

This  stage  of  our  political  history  furnishes  no  foothold  for  the  patrons 
of  this  new  doctrine. 

Did  then  the  principle  or  operation  of  the  great  event  which  made  the 
colonies  independent  states,  imply  or  introduce  the  common  law  as  a  law 
of  the  Union  ? 

The  fundamental  principle  of  the  Revolution  was,  that  the  colonies  were 
co-ordinate  members  with  each  other,  and  with  Great  Britain,  of  an  em- 
.pire,  united  by  a  common  executive  sovereign,  but  not  united  by  any  com- 
mon legislative  sovereign.  The  legislative  power  was  maintained  to  be  as 
complete  in  each  American  parliament,  as  in  the  British  parliament.  And 
the  royal  prerogative  was  in  force  in  each  colony,  by  virtue  of  its  ac- 
knowledging the  king  for  its  executive  magistrate,  as  it  was  in  Great 
Britain,  by  virtue  of#  like  acknowledgment  there.  A  denial  of  these 
principles  by  Great  Britain,  and  the  assertion  of  them  by  America,  pro- 
duced the  Revolution. 

There  was  a  time,  indeed,  when  an  exception  to  the  legislative  separa- 
tion of  the  several  component  and  coequal  parts  of  the  empire  obtained  a 
degree  of  acquiescence.  The  British  parliament  was  allowed  to  regulate 
the  trade  with  foreign  nations,  and  between  the  different  parts  of  the  em- 
pire. This  was,  however,  mere  practice  without  right,  and  contrary  to 
the  true  theory  of  the  Constitution.  The  conveniency  of  some  regulations, 
in  both  those  cases,  was  apparent ;  and  as  there  was  no  legislature  with 
power  over  the  whole,  nor  any  constitutional  pre-eminence  among  the 
legislatures  of  the  several  parts,  it  was  natural  for  the  legislature  of  that 
particular  part  which  was  the  eldest  and  the  largest,  to  assume  this  func- 
tion, and  for  the  others  to  acquiesce  in  it.  This  tacit  arrangement  was 
the  less  criticised,  as  the  regulations  established  by  the  British  parliament 
operated  in  favour  of  that  part  of  the  empire  which  seemed  to  bear  the 
principal  share  of  the  public  burdens,  and  were  regarded  as  an  indemnifi- 
cation of  its  advances  for  the  other  parts.  As  long  as  this  regulating 
power  was  confined  to  the  two  objects  of  conveniency  and  equity,  it  was 
not  complained  of,  nor  much  inquired  into.  But,  no  sooner  was  it  per- 
verted to  the  selfish  views  of  the  party  assuming  it,  than  the  injured  parties 
began  to  feel  and  to  reflect ;  and  the  moment  the  claim  to  a  direct  and 
indefinite  power  was  ingrafted  on  the  precedent  of  the  regulating  power, 
the  whole  charm  was  dissolved,  and  every  eye  opened  to  the  usurpation. 
The  assertion  by  Great  Britain  of  a  power  to  make  laws  for  the  other 
members  of  the  empire  in  all  cases  whatsoever •,  ended  in.  the  discovery 
that  she  had  a  right  to  make  laws  for  them  in  no  cases  whatsoever. 

Such  being  the  ground  of  our  Revolution,  no  support  nor  colour  can  be 
drawn  from  it,  for  the  doctrine  that  the  common  law  is  binding  on  these 
states  as  one  society.  The  doctrine,  on  the  contrary,  is  evidently  repug- 
nant to  the  fundamental  principle  of  the  Revolution. 

The  articles  of  confederation  are  the  next  source  of  information  on  this 
subject. 

In  the  interval  between  the  commencement  of  the  Revolution  and  the 
final  ratification  of  these  articles,  the  nature  and  extent  of  the  Union  was 
determined  by  the  circumstances  .of  the  crisis,  rather  than  by  any  accu- 
rate delineation  of  the  general  authority.  It  will  not  be  alleged,  that  the 


REPORT  OP  1799.  213 

"  common  law"  could  have  had  any  legitimate  birth  as  a  law  of  the  United 
States  during  that  stale  of  things.  If  'it  came,  as  such,  into  existence  at 
all,  the  charter  of  confederation  must  have  been  its  parent. 

Here  again,  however,  its  pretensions  are  absolutely  destitute  of  founda- 
tion. This  instrument  does  not  contain  a  sentence  or  syllable  that  can  be 
tortured  into  a  countenance  of  the  idea,  that  the  parties  to  it  were,  with 
respect  to  the  objects  of  the  common  law,  to  form  one  community.  No 
such  law  is  named  or  implied,  or  alluded  to  as  being  in  force,  or  as 
brought  into  force  by  that  compact.  No  provision  is  made  by  which  such 
a  law  could  be  carried  into  operation  ;  whilst,  on  the  other  hand,  every 
such  inference  or  pretext  is  absolutely  precluded  by  Article  2d,  which 
declares,  "  that  each  state  retains  its  sovereignty,  freedom,  and  indepen- 
dence, and  every  power,  jurisdiction,  and  right,  which  is  not  by  this  con- 
federation expressly  delegated  to  the  United  States,  in  Congress  assem- 
bled." 

Thus  far  it  appears  that  not  a  vestige  of  this  extraordinary  doctrine 
can  be  found  in  the  origin  or  progress  of  American  institutions.  The 
evidence  against  it  has,  on  the  contrary,  grown  stronger  at  every  step, 
till  it  has  amounted  to  a  formal  and  positive  exclusion,  by  written  articles 
of  compact  among  the  parties  concerned. 

Is  this  exclusion  revoked,  and  the  common  law  introduced  as  a  national 
law,  by  the  present  Constitution  of  the  United  States  ?  This  is  the  final 
question  to" be  examined. 

It  is  readily  admitted,  that  particular  parts  of  the  common  law  may 
have  a  sanction  from  the  Constitution,  so  far  as  they  are  necessarily 
comprehended  in  the  technical  phrases  which  express  the  powers  delegated 
to  the  government;  and  so  far  also,  as  such  other  parts  may  be  adopted 
by  Congress  as  necessary  and  proper  for  carrying  into  execution  the 
powers  expressly  delegated.  But,  the  question  does  not  relate  to  either 
of  these  portions  of  the  common  law.  It  relates  to  the  common  law  be- 
yond these  limitations. 

The  only  part  of  the  Constitution  which  seems  to  have  been  relied  on 
in  this  case  is  the  2d  Sect,  of  Art.  III.  "  The  judicial  power  shall  extend 
to  all  cases  in  law  and  equity,  arising  under  this  Constitution,  the  laws 
of  the  United  States,  and  treaties  made  or  which  shall  be  made  under 
their  authority." 

It  has  been  asked  what  cases,  distinct  from  those  arising  under  the  laws 
and  treaties  of  the  United  States,  can  arise  under  the  Constitution,  -other 
than  those  arising  under  the  common  law  ;  and  it  is  inferred,  that  the 
common  law  is  accordingly  adopted  or  recognised  by  the  Constitution. 

Never,  perhaps,  was  so  broad  a  construction  applied  to  a  text  so  clearly 
unsusceptible  of  it.  If  any  colour  for  the  inference  could  be  found,  it 
must  be  in  the  impossibility  of  finding  any  other  cases  in  law  and  equity, 
within  the  provision  of  the  Constitution,  to  satisfy  the  expression ;  and 
rather  than  resort  to  a  construction  affecting  so  essentially  the  whole  cha- 
racter of  the  government,  it  would  perhaps  be  more  rational  to  consider 
the  expression  as  a  mere  pleonasm,  or  inadvertence.  But,  it  is  not  neces- 
sary to  decide  on  such  a  dilemma.  The  expression  is  fully  satisfied,  and 
its  accuracy  justified,  by  two  descriptions  of  cases,  to  which  the  judicial 


214  REPORT  OF  1799. 

authority  is  extended,  and  neither  of  which  implies  that  the  common  law 
is  the  law  of  the  United  States.  One  of  these  descriptions  comprehends 
the  cases  growing  out  of  the  restrictions  on  the  legislative  power  of  the 
states.  For  example,  it  is  provided  that  "  no  state  shall  emit  bills  of 
credit,"  or  "  make  anything  but  gold  and  silver  coin  a  tender  in  payment 
of  debts."  Should  this  prohibition  be  violated,  and  a  suit  between  citizens 
of  the  same  state  be  the  consequence,  this  would  be  a  case  arising  under 
the  Constitution,  before  the  judicial  power  of  the  United  States.  A  second 
description  comprehends  suits  between  citizens  and  foreigners,  or  citizens 
of  different  states,  to  be  decided  according  to  the  state  or  foreign  laws ;  but 
submitted  by  the  Constitution  to  the  judicial  power  of  the  United  States ; 
the  judicial  power  being,  in  several  instances,  extended  beyond  the  legisla- 
tive power  of  the  United  States. 

To  this  explanation  of  the  text,  the  following  observations  may  be 
added : 

The  expression,  "cases  in  law  and  equity,"  is  manifestly  confined  to 
cases  of  a  civil  nature ;  and  would  exclude  cases  of  criminal  jurisdiction. 
Criminal  cases  in  law  and  equity  would  be  a  language  unknown  to  the 
law.* 

The  succeeding  paragraph  of  the  same  section  is  in  harmony  with  this 
construction.  It  is  in  these  words :  "  In  all  cases  affecting  ambassadors, 
other  public  ministers,  and  consuls,  and  those  in  which  a  state  shall  be  a 
party,  the  Supreme  Court  shall  have  original  jurisdiction.  In  all.  the 
other  cases  [including  cases  in  law  and  equity  arising  under  the  Constitu- 
tion] the  Supreme  Court  shall  have  appellate  jurisdiction  both  as  to  law 
and  fact;  with  such  exceptions,  and  under  such  regulations,  as  Congress 
shall  make." 

This  paragraph,  by  expressly  giving  an  appellate  jurisdiction,  in 
cases  of  law  and  equity  arising  under  the  Constitution,  to  fact,  as  well 
as  to  law,  clearly  excludes  criminal  cases,  where  the  trial  by  jury  is 
secured  ;  because  the  fact,  in  such  cases,  is  not  a  subject  of  appea4.f 
And,  although  the  appeal  is  liable  to  such  exceptions  and  regulations 
as  Congress  may  adopt,  yet  it  is  not  to  be  supposed  that  an  exception 
of  all  criminal  cases  could  be  contemplated  ;  as  well  because  a  discretion 
in  Congress  to  make  or  omit  the  exception  would  be  improper,  as  because 

*  The  phrase  "  cases  in  law  and  equity"  undoubtedly  means  cases  in  law,  and  cases 
in  equity,  and  both  were  made  cognizable  by  the  federal  judiciary.  Whilst,  then,  there 
cannot  be  criminal  cases  in  equity,  as  the  text  observes,  there  may  be  criminal  cases 
at  law,  and  so  the  expression  in  question  would  include  such  cases.  The  reasoning-  is 
not  much  aided  by  this  observation  of  the  text.  It  is  fortunately  strong  enough  with, 
out  it. 

t  If  this  mode  of  argument  were  correct,  it  would  in  like  manner  exclude  all  cases 
at  ZOMJ,  as  well  of  a  civil  as  a  criminal  nature,  for  the  seventh  amendment  to  the 
Constitution  secures  trial  by  jury  in  the  former,  as  it  had  already  been  secured 
in  the  latter,  and  further  declares,  that  no  fact  tried  by  a  jury  shall  be  otherwise  re- 
examined  in  any  court  of  the  United  States,  than  according  to  the  rules  of  the  com- 
mon law.  The  general  argument  to  prove  that  the  common  law  is  no  part  of  the  law 
of  the  Federal  Government  is  irrefutable,  but  the  conclusion  is  not  helped  by  the 
inferences  attempted  to  be  drawn  from  the  phrase  "  cases  in  law  and  equity." 


REPORT  OF  1799.  215 

it  would  have  been  unnecessary.  The  exception  could  as  easily  have 
been  made  by  the  Constitution  itself,  as  referred  to  the  Congress. 

Once  more;  the  amendment  last  added  to  the  Constitution,  deserves  at- 
tention, as  throwing  light  on  this  subject.  "  The  judicial  power  of  the 
United  Stales  shall  not  be  construed  to  extend  to  any  suit  in  law  or  equity, 
commenced  or  prosecuted  against  one  of  the  United  States,  by  citizens  of 
another  state,  or  by  citizens  or  subjects  of  any  foreign  power."  As  it  will 
not  be  pretended  that  any  criminal  proceeding  could  Jake  place  against  a 
state,  the  terms  law  or  equity,  must  be  understood  as  appropriate  to  civil, 
in  exclusion  of  cr.iminal  cases. 

From  these  considerations,  it  is  evident,  that  this  part  of  the  Constitu- 
tion, even  if  it  could  be  applied  at  all  to  the  purpose  for  which  it  has  been 
cited,  would  not  include  any  cases  whatever  of  a  criminal  nature  ;  and 
consequently,  would  not  anthorize  the  inference  from  it,  that  the  judicial 
authority  extends  to  offences  against  the  common  law,  as  offences  arising 
under  the  Constitution. 

It  is  further  to  be  considered,  that  even  if  this  part  of  the  Constitution 
could  be  strained  into  an  application  to  every  common  law  case,  criminal 
as  well  as  civil,  it  could  have  no  effect  in  justifying  the  sedition-act, 
which  is  an  exercise  of  legislative,  and  not  of  judicial  power:  and  it  is 
the  judicial  power  only,  of  which  the  extent  is  defined  in  this  part  of  the 
Constitution. 

There  are  two  passages  in  the  Constitution,  in  which  a  description  of 
the  law  of  the  United  States  is  found.  The  first  is  contained  in  Art.  III. 
sect.  2,  in  the  words  following  :  "  This  Constitution,  the  laws  of  the  United 
States,  and  treaties  made,  or  which  shall  be  made  under  their  authority." 
The  second  is  contained  in  the  second  paragraph  of  Art.  VI.  as  follows  : 
"  This  Constitution,  and  the  laws  of  the  United  States  which  shall  be  made 
in  pursuance  thereof,  and  all  treaties  made,  or'which  shall  be  made,  under 
the  authority  of  the  United  States,  shall  be  the  supreme  law  of  the  land." 
The  first  of  these  descriptions  was  meant  as  a  guide  to  the  judges  of  the 
United  States ;  the  second,  as  a  guide  to  the  judges  in  the  several  states. 
Both  of  them  consists  of  an  enumeration,  which  was  evidently  meant  to 
be  precise  and  complete.  If  the  common  law  had  been  understood  to  be 
a  law  of  the  United  States,  it  is  not  possible  to  assign  a  satisfactory  reason 
why  it  was  not  expressed  in  the  enumeration. 

In  aid  of  these  objections,  the  difficulties  and  confusion  inseparable 
from  a  constructive  introduction  of  the  common  law,  would  afford  power- 
ful reasons  against  it. 

Is  it  to  be  the  common  law  with  or  without  the  British  statutes  1 

If  without  the  statutory  amendments,  the  vices  of  the  code  -would  be 
insupportable. 

Tf  with  these  amendments,  what  period  is  to  be  fixed  for  limiting  the 
British  authority  over  our  laws? 

Is  it  to  be  the  date  of  the  eldest  or  the  youngest  of  the  colonies? 

Or  are  the  dates  to  be  thrown  together,  and  a  medium  deduced? 

Or  is  our  independence  to  be  taken  for  the  date? 

Is,  again,  regard  to  be  had  to  the  various  changes  in  the  common  law 
made  by  the  local  codes  of  America  ? 


216  REPORT  OF  1799. 

Is  regard  to  be  had  to  such  changes,  subsequent,  as  well  as  prior,  to  the 
establishment  of  the  Constitution  ? 

Is  regard  to  be  had  to  future,  as  well  as  past  changes? 

Is  the  law  to  be  different  in  every  state,  as  differently  modified  by 
its  code;  or  are  the  modifications  of  any  particular  state  to  be  applied 
to  all  ? 

And  on  the  latter  supposition,  which  among  the  state  codes  would  form 
the  standard  1 

Questions  of  this  sort  might  be  multiplied  with  as  much  ease,  as  there 
would  be  difficulty  in  answering  them. 

The  consequences  flowing  from  the  proposed  construction,  furnish  other 
objections  equally  conclusive ;  unless  the  text  were  peremptory  in  its  mean- 
ing, and  consistent  with  other  parts  of  the  instrument. 

These  consequences  may  be  in  relation  to  the  legislative  authority  of 
the  United  States  ;  to  the  executive  authority ;  to  the  judicial  authority ; 
and  to  the  governments  of  the  several  states. 

If  it  be  understood,  that  the  common  law  is  established  by  the  Constitu- 
tion, it  follows  that  no  part  of  the  law  can  be  altered  by  the  legislature ; 
such  of  the  statutes  already  passed,  as  may  be  repugnant  thereto  would 
be  nullified ;  particularly  the  "  sedition-act"  itself,  which  boasts  of  being 
a,  melioration  of  the  common  law ;  and  the  whole  code,  with  all  its  incon- 
gruities, barbarisms,  and  bloody  maxims,  would  be  inviolably  saddled  on 
the  good  people  of  the  United  States. 

Should  this  consequence  be  rejected,  and  the  common  law  be  held,  like 
other  laws,  liable  to  revision  and  alteration,  by  the  authority  of  Congress, 
it  then  follows,  that  the  authority  of  Congress  is  co-extensive  with  the 
objects  of  common  law ;  that  is  to  say,  with  every  object  of  legislation  : 
for  to  every  such  object  does  some  branch  or  other  of  the  common  law 
extend.  The  authority  of  Congress  would,  therefore,  be  no  longer  under 
the  limitations  marked  out  in  the  Constitution.  They  would  be  authorized 
to  legislate  in  all  cases  whatsoever. 

In  the  next  place,  as  the  President  possesses  the  executive  powers  of 
the  Constitution,  and  is  to  see  that  the  laws  be  faithfully  executed,  his 
authority  also  must  be  coextensive  with  every  branch  of  the  common 
law.  The  additions  which  this  would  make  to  his  power,  though  not 
readily  to  be  estimated,  claim  the  most  serious  attention. 

This  is  not  all ;  it  will  merit  the  most  profound  consideration,  how  far 
an  indefinite  admission  of  the  common  law,  with  a  latitude  in  construing 
it,  equal  to  the  construction  by  which  it  is  deduced  from  the  Constitution, 
might  draw  after  it  the  various  prerogatives  making  part  of  the  unwritten 
law  of  England.  The  English  constitution  itself  is  nothing  more  than  a 
composition  of  unwritten  laws  and  maxims. 

In  the  third  place,  whether  the  common  law  be  admitted  as  of  legal  or 
of  constitutional  obligation,  it  would  confer  on  the  judicial  department  a 
discretion  little  short  of  a  legislative  power. 

On  the  supposition  of  its  having  a  constitutional  obligation,  this  power 
in  the  judges  would  be  permanent  and  irremediable  by  the  legislature. 
On  the  other  supposition,  the  power  would  not  expire,  until  the  legislature 
should  have  introduced  a  full  system  of  statutory  provisions.  Let  it  be 


REPORT  OP  1799.  217 

observed,  too,  that  besides  all  the  uncertainties  above  enumerated,  and 
which  present  an  immense  field  for  judicial  discretion,  it  would  remain 
with  the  same  department  to  decide  what  parts  of  the  common  law  would, 
and  what  would  not,  be  properly  applicable  to  the  circumstances  of  the 
United  States. 

A  discretion  of  this  sort  has  always,  been  lamented  as  incongruous  and 
dangerous,  even  in  the  colonial  and  siSite  courts ;  although  so  much  nar- 
rowed by  positive  provisions  in  the  local  codes  on  all  the  principal  sub- 
jects embraced  by  the  common  law.  Under  the  United  States,  where  so 
few  laws  exist  on  those  subjects,  and  where  so  great  a  lapse  of  time  must 
happen  before  the  vast  chasm  could  be  supplied,  it  is  manifest  that  the 
power  of  the  judges  over  the  law  would,  in  fact,  erect  them  into  legisla- 
tors ;  and  that,  for  a  long  time,  it  would  be  impossible  for  the  citizens  to 
conjecture,  either  what  was,  or  would  be  law. 

In  the  last  place,  the  consequence  of  admitting  the  common  law  as  the 
law  of  the  United  States,  on  the  authority  of  the  individual  states,  is  as 
obvious  as  it  would  be  fatal.  As  this  law  relates  to  every  subject  of 
legislation,  and  would  be  paramount  to  the  constitutions  and  laws  of  the 
states,  the  admission  of  it  would  overwhelm  /he  residuary  sovereignty  of 
the  states,  and  by  one  constructive  operation,  new-model  the  whole  politi- 
cal fabric  of  the  country. 

From  the  review  thus  taken  of  the  situation  of  the  American  colonies 
prior  to  their  independence ;  of  the  effect  of  this  event  on  their  situation ; 
of  the  nature  and  import  of  the  articles  of  confederation.;  of  the  true 
meaning  of  the  passage  in  the  existing  Constitution  from  which  the  com- 
mon law  has  been  deduced  ;  of  the  difficulties  and  uncertainties  incident 
to  the  doctrine;  and  of  its  vast  consequences  in  extending  the  powers  of 
the  Federal  Government,  and  in  superseding  the  authorities  of  the  state 
governments ;  the  committee  feel  the  utmost  confidence  in  concluding, 
that  the  common  law  never  was,  nor,  by  any  fair  construction,  ever  can 
be,  deemed  a  law  for  the  American  people  as  one  community ;  and  they 
indulge  the  strongest  expectation  that  the  same  conclusion  will  finally  be 
drawn,  by  all  candid  and  accurate  inquirers  into  the  subject.  It  is  indeed 
distressing  to  reflect,  that  it  ever  should  have  been  made  a  question, 
whether  the  Constitution,  on  the  whole  face  of  which  is  seen  so  much 
labour  to  enumerate  and  define  the  several  objects  of  federal  power,  could 
intend  to  introduce  in  the  lump,  in  an  indirect  manner,  and  by  a  forced 
construction  of  a  few  phrases,  the  vast  and  multifarious  jurisdiction  in- 
volved in  the  common  law ;  a  law  filling  so  many  ample  volumes  ;  a  law 
overspreading  the  entire  field  of  legislation ;  and  a  law  that  would  sap 
the  foundation  of  the  Constitution  as  a  system  of  limited  and  specified 
powers.  A  severer  reproach  could  not,  in  the  opinion  of  the  committee, 
be  thrown  on  the  Constitution,  on  those  who  framed,  or  on  those  who 
established  it,  than  such  a  supposition  would  throw  on  them. 

The  argument,  then,  drawn  from  the  common  law,  on  the  ground  of 
its  being  adopted  or  recognised  by  the  Constitution,  being  inapplicable  to 
the  sedition-act,  the  committee  will  proceed  to  examine  the  other  argu- 
ments which  have  been  founded  on  the  Constitution. 

They  will  waste  but  little  time  on  the  attempt  to  cover  the  act  by  the 


218  REPORT  OP  1799. 

preamble  to  the  Constitution;  it  being  contrary  to  every  acknowledged 
rule  of  construction,  to  set  up  this  part  of  an  instrument,  in  opposition  to 
the  plain  meaning  expressed  in  the  body  of  the  instrument.  A  preamble 
usually  contains  the  general  motives  or  reasons,  for  the  particular  regu- 
lations or  measures  which  follow  it;  and  is  always  understood  to  be 
explained  and  limited  by  them.  In  the  present  instance,  a  contrary  inter- 
pretation would  have  the  inadmissible  effect,  of  rendering  nugatory  or 
improper  every  part  of  the  Constitution  which  succeeds  the  preamble. 

The  paragraph  in  Art.  I.  sect.  8,  which  contains  the  power  to  lay  and 
collect  taxes,  duties,  imposts,  and  excise ;  to  pay  the  debts,  and  provide  for 
the  common  defence  and  general  welfare,  having  been  already  examined, 
will  also  require  no  particular  attention  in  this  place.  It  will  have  been 
seen  that  in  its  fair  and  consistent  meaning,  it  cannot  enlarge  the  enume- 
rated powers  vested  in  Congress. 

The  part  of  the  Constitution  which  seems  most  to  be  recurred  to,  in 
defence  of  the  "  sedition-act,"  is  the  last  clause  of  the  above  section,  em- 
powering Congress  "to  make  all  laws  which  shall  be  necessary  and  proper 
for  carrying  into  execution  the  foregoing  powers,  and  all  other  powers 
vested  by  this  Constitution  in  the  government  of  the  United  Slates,  or  in 
any  department  or  officer  thereof." 

The  plain  import  of  this  clause  is,  that  Congress  shall  have  all  the  inci- 
dental or  instrumental  powers  necessary  and  proper  for  carrying  into 
execution  all  the  express  powers ;  whether  they  be  vested  in  the  go- 
vernment of  the  United  States,  more  collectively,  or  in  the  several  de- 
partments or  officers  thereof.  It  is  not  a  grant  of  new  powers  to  Congress, 
but  merely  a  declaration,  for  the  removal  of  all  uncertainty,  that  the 
means  of  carrying  into  execution,  those  otherwise  granted,  are  included 
in  the  grant. 

Whenever,  therefore,  a  question  arises  concerning  the  constitutionality 
of  a  particular  power,  the  first  question  is,  whether  the  power  be  expressed 
in  the  Constitution.  If  it  be,  the  question  is  decided.  If  it  be  not  ex- 
pressed, the  next  inquiry  must  be,  whether  it  is  properly  an  incident  to  an 
express  power,  and  necessary  to  its  execution.  If  it  be,  it  may  be  exer- 
cised by  Congress.  If  it  be  not,  Congress  cannot  exercise  it. 

Let  the  question  be  asked,  then,  whether  the  power  over  the  press,  exer- 
cised in  the  "  sedition-act,"  be  found  among  the  powers  expressly  vested 
in  the  Congress?  This  is  not  pretended. 

Is  there  any  express  power,  for  executing  which  it  is  a  necessary  and 
proper  power  ? 

The  power  which  has  been  selected,  as  least  remote,  in  answer  to  this 
question,  is  that  of  "  suppressing  insurrections;"  which  is  said  to  imply  a 
power  to  prevent  insurrections,  by  punishing  whatever  may  lead  or  tend 
to  them.  But,  it  surely  cannot,  with  the  least  plausibility,  be  said,  that  a 
regulation  of  the  press,  and  a  punishment  of  libels,  are  exercises  of  a 
power  to  suppress  insurrections.  The  most  that  could  be  said,  would  be, 
that  the  punishment  of  libels,  if  it  had  the  tendency  ascribed  to  it,  might 
prevent  the  occasion  of  passing  or  executing  laws  necessary  and  proper 
for  the  suppression  of  insurrections. 


REPORT  OF   1799.  219 

Has  the  Federal  Government  no  power,  then,  to  prevent  as  well  as  to 
punish  resistance  to.  the  laws  ? 

They  have  the  power,  which  the  Constitution  deemed  most  proper,  in 
their  hands  for  the  purpose.  The  Congress  has  power  before  it  happens, 
to  pass  laws  for  punishing  it ;  and  the  executive  and  judiciary  have  power 
to  enforce  those  laws  when  it  does  happen. 

It  must  be  recollected  by  many,  and  could  be  shown  to  the  satisfaction 
of  all,  that  the  construction  here  put  on  the  terms  "necessary  and  proper,"  is 
precisely  the  construction  which  prevailed  during  the  discussions  and  ratifica- 
tions of  the  Constitution.  It  may  be  added,  and  cannot  too  often  be  repeated, 
that  it  is  a  construction  absolutely  necessary  to  maintain  their  consistency 
with  the  peculiar  character  of  the  government,  as  possessed  of  particular 
and  defined  powers  only ;  not  of  the  general  and  indefinite  powers  vested 
in  ordinary  governments.  For,  if  the  power  to  suppress  insurrection, 
includes  a  power  to  punish  libels;  or  if  the  power  to  punish,  includes  a 
power  to  prevent,  by  all  the  means  that  may  have  that  tendency  ;  such  is 
the  relation  and  influence  among  the  most  remote  subjects  of  legislation, 
that  a  power  over  a  very  few,  would  carry  with  it  a  power  over  all.  And 
it  must  be  wholly  immaterial,  whether  unlimited  powers  be  exercised  under 
the  name  of  unlimited  powers,  or  be  exercised  under  the  name  of  unlimited 
means  of  carrying  into  execution  limited  powers. 

This  branch  of  the  subject  will  be  closed  with  a  reflection  which  must 
have  weight  with  all ;  but  more  especially  with  those  who  place  peculiar 
reliance  on  the  judicial  exposition  of  the  Constitution,  as  the  bulwark 
provided  against  undue  extensions  of  the  legislative  power.  If  it  be  un- 
derstood that  the  powers  implied  in  the  specified  powers,  have  an  imme- 
diate and  appropriate  relation  to  them,  as  means,  necessary  and  proper 
for  carrying  them  into  execution,  questions  on  the  constitutionality  of  laws 
passed  for  this  purpose,  will  be  of  a  nature  sufficiently  precise  and  deter- 
minate for  judicial  cognizance  and  control !  If.  on  the  other  hand,  Con- 
gress are  not  limited  in  the  choice  of  means  by  any  such  appropriate 
relation  of  them  to  the  specified  powers ;  but  may  employ  all  such  means 
as  they  may  deem  fitted  to  prevent,  as  well  as  to  punish,  crimes  subjected 
to  their  authority;  such  as  may  have  a  tendency  only  to  promote  an  object 
for  which  they  are  authorized  to  provide ;  every  one  must  perceive,  that 
questions  relating  to  means  of  this  sort,  must  be  questions  of  mere 
policy  and  expediency,  on  which  legislative  discretion  alone  can  decide, 
and  from  which  the  judicial  interposition  and  control  are  completely 
excluded. 

2.  The  next  point  which  the  resolution  requires  to  be  proved,  is,  that 
the  power  over  the  press  exercised  by  the  sedition-act,  is  positively  forbid- 
den by  one  of  the  amendments  to  the  Constitution. 

The  amendment  stands  in  these  words — "  Congress  shall  make  no  law 
respecting  an  establishment  of  religion,  or  prohibiting  the  free  exercise 
thereof,  or  abridging  the  freedom  of  speech  or  of  the  press;  or  the  right  of 
the  people  peaceably  to  assemble,  and  to  petition  the  government  for  a 
redress  of  grievances." 

In  the  attempts  to  vindicate  the  "  sedition-act,"  it  has  been  contended, 
1.  That  the  "  freedom  of  the  press"  is  to  be  determined  by  the  meaning 


220  REPORT  OF  1799. 

of  these  terms  in  the  common  law.  2.  That  the  article  supposes  the 
power  over  the  press  to  be  in  Congress,  and  prohibits  them  only  from 
abridging  the  freedom  allowed  to  it  by  the  common  law. 

Although  it  will  be  shown,  in  examining  the  second  of  these  posi- 
tions, that  the  amendment  is  a  denial  to  Congress  of  all  power  over  the 
press,  it  may  not  be  useless  to  make  the  following  observations  on  the  first 
of  them. 

It  is  deemed  to  be  a  sound  opinion,  that  the  sedition-act,  in  its  defini- 
tion of  some  of  the  crimes  created,  is  an  abridgment  of  the  freedom  of 
publication,  recognised  by  principles  of  the  common  law  in  England. 

The  freedom  of  the  press  under  the  common  law,  is,  in  the  defences  of 
the  sedition-act,  made  to  consist  in  an  exemption  from  all  previous  restraint 
on  printed  publications,  by  persons  authorized  to  inspect  and  prohibit 
them.  It  appears  to  the  committee,  that  this  idea  of  the  freedom  of  the 
press,  can  never  be  admitted  to  be  the  American  idea  of  it :  since  a  law 
inflicting  penalties  on  printed  publications,  would  have  a  similar  effect 
with  a  law  authorizing  a  previous  restraint  on  them.  It  would  seem  a 
mockery  to  say,  that  no  law  should  be  passed,  preventing  publications 
from  being  made,  but  that  laws  might  be  passed  for  punishing  them  in 
case  they  should  be  made. 

The  essential  difference  between  the  British  government,  and  the  Ame- 
rican constitutions,  will  place  this  subject  in  the  clearest  light. 

In  the  British  government,  the  danger  of  encroachments  on  the  rights 
of  the  people,  is  understood  to  be  confined  to  the  executive  magistrate. 
The  representatives  of  the  people  in  the  legislature,  are  not  only  exempt 
themselves,  from  distrust,  but  are  considered  as  sufficient  guardians  of  the 
rights  of  their  constituents  against  the  danger  from  the  executive.  Hence 
it  is  a  principle,  that  the  parliament  is  unlimited  in  its  power;  or,  in  their 
own  language,  is  omnipotent.  Hence,  too,  all  the  ramparts  for  protecting 
the  rights  of  the  people,  such  as  their  magna  charta,  their  bill  of  rights, 
&c.,  are  not  reared  against  the  parliament,  but  against  the  royal  preroga- 
tive. They  are  merely  legislative  precautions  against  executive  usurpa- 
tions. Under  such  a  government  as  this,  an  exemption  of  the  press  from 
previous  restraint  by  licensers  appointed  by  the  king,  is  all  the  freedom 
that  can  be  secured  to  it. 

In  the  United  States,  the  case  is  altogether  different.  The  people,  not 
the  government,  possess  the  absolute  sovereignty.  The  legislature,  no 
less  than  the  executive,  is  under  limitations  of  power.  Encroachments 
are  regarded  as  possible  from  the  one,  as  well  as  from  the  other.  Hence, 
in  the  United  States,  the  great  and  essential  rights  of  the  people  are 
secured  against  legislative,  as  well  as  against  executive  ambition.  They 
are  secured,  not  by  laws  paramount  to  prerogative,  but  by  constitutions 
paramount  to  laws.  This  security  of  the  freedom  of  the  press  requires, 
.  that  it  should  be  exempt,  not  only  from  previous  restraint  by  the  execu- 
tive, as  in  Great  Britain,  but  from  legislative  restraint  also;  and  this 
exemption,  to  be  effectual,  must  be  an  exemption  not  only  from  the  pre- 
vious inspection  of  licensers,  but  from  the  subsequent  penalty  of  laws. 

The  state  of  the  press,  therefore,  under  the  common  law,  cannot,  in  this 
point  of  view,  be  the  standard  of  its  freedom  in  the  United  States. 


REPORT  OF  1799.  221 

But  there  is  another  view,  under  which  it  may  be  necessary  to  consider 
this  subject.  It  may  be  alleged,  that  although  the  security  for  the  free- 
dom of  the  press,  be  different  in  Great  Britain  and  in  this  country  ;  being 
a  legal  security  only  in  the  former,  and  a  constitutional  security  in  the 
latter ;  and  although  there  may  be  a  further  difference,  in  an  extension  of 
the  freedom  of  the  press  here,  beyond  an  exemption  from  previous  re- 
straint, to  an  exemption  from  subsequent  penalties  also  ;  yet  that  the  actual 
legal  freedom  of  the  press,  under  the  common  law,  must  determine  the 
degree  of  freedom  which  is  meant  by  the  terms,  and  which  is  constitu- 
tionally secured  against  both  previous  and  subsequent  restraints. 

The  committee  are  not  unaware  of  the  difficulty  of  all  general  ques- 
tions, which  may  turn  on  the  proper  boundary  between  the  liberty  and 
licentiousness  of  the  press.  They  will  leave  it  therefore  for  consideration 
only,  how  far  the  difference  between  the  nature  of  the  British  government, 
and  the  nature  of  the  American  governments,  and  the  practice  under  the 
latter,  may  show  the  degree  of  rigour  in  the  former  to  be  inapplicable  to, 
and  not  obligatory  in  the  latter. 

The  nature  of  governments  elective,  limited,  and  responsible,  in  all  their 
branches,  may  well  be  supposed  to  require  a  greater  freedom  of  animad- 
version than  might  be  tolerated  by  the  genius  of  such  a  government  as 
that  of  Great  Britain.  In  the  latter,  it  is  a  maxim,  that  the  king,  an 
hereditary,  not  a  responsible  magistrate,  can  do  no  wrong;  and  that  the 
legislature,  which  in  two-thirds  of  its  composition,  is  also  hereditary,  not 
responsible,  can  do  what  it  pleases.  In  the  United  States,  the  executive 
magistrates  are  not  held  to  be  infallible,  nor  the  legislatures  to  be  omnipo- 
tent ;  and  both  being  elective,  are  both  responsible.  Is  it  not  natural  and 
necessary,  under  such  different  circumstances,  that  a  different  degree  of 
freedom,  in  the  use  of  the  press,  should  be  contemplated  ? 

Is  not  such  an  inference  favoured  by  what  is  observable  in  Great  Britain 
itself?  Notwithstanding  the  general  doctrine  of  the  common  law,  on  the 
subject  -of  the  press,  and  the  occasional  punishment  of  those  who  use  it 
with  a  freedom  offensive  to  the  government;  it  is  well  known,  that  with 
respect  to  the  responsible  members  of  the  government,  where  the  reasons 
operating  here,  become  applicable  there,  the  freedom  exercised  by  the 
press,  and  protected  by  the  public  opinion,  far  exceeds  the  limits  prescribed 
by  the  ordinary  rules  of  law.  The  ministry,  who  are  responsible  to  im- 
peachment, are  at  all  times  animadverted  on,  by  the  press,  with  peculiar 
freedom ;  and  during  the  elections  for  the  House  of  Commons,  the  other 
responsible  part  of  the  government,  the  press  is  employed  with  as  little 
reserve  towards  the  candidates. 

The  practice  in  America  must  be  entitled  to  much  more  respect.  In 
every  state,  probably,  in  the  Union,  the  press  has  exerted  a  freedom  in 
canvassing  the  merits  and  measures  of  public  men,  of  every  description, 
which  has  not  been  confined-  to  the  strict  limits  of  the  common  law.  On 
this  footing,  the  freedom  of  the  press  has  stood ;  on  this  footing  it  yet 
stands.  And  it  will  not  be  a  breach,  either  of  truth  or  of  candour,  to  say, 
that  no  persons  or  presses  are  in  the  habit  of  more  unrestrained  animad- 
versions on  the  proceedings  and  functionaries  of  the  state  governments, 
than  the  persons  and  presses  most  zealous  in  vindicating  the  act  of  Con- 


222  REPORT  OF  1799. 

gress  for  punishing  similar  animadversions  on  the  government  of  the 
United  States. 

The  last  remark  will  not  be  understood  as  claiming  for  the  state  govern- 
ments an  immunity  greater  than  they  have  heretofore  enjoyed.  Some 
degree  of  abuse  is  inseparable  from  the  proper  use  of  everything ;  and  in 
no  instance  is  this  more  true,  than  in  that  of  the  press.  It  has  accord- 
ingly been  decided  by  the  practice  of  the  states,  that  it  is  better  to  leave  a 
few  of  its  noxious  branches  to  their  luxuriant  growth,  than  by  pruning 
them  away,  to  injure  the  vigour  of  those  yielding  the  proper  fruits.  And 
can  the  wisdom  of  this  policy  be  doubted  by  any  who  reflect,  that  to  the 
press  alone,  chequered  as  it  is  with  abuses,  the  world  is  indebted  for  all 
the  triumphs  which  have  been  gained  by  reason  and  humanity,  over  error 
and  oppression  ;  who  reflect,  that  to  the  same  beneficent  source,  the  United 
States  owe  much  of  the  lights  which  conducted  them  to  the  rank  of  a  free 
and  independent  nation ;  and  which  have  improved  their  political  system 
into  a  shape  so  'auspicious  to  their  happiness.  Had  "  sedition-acts,"  for- 
bidding every  publication  that  might  bring  the  constituted  agents  into  con- 
tempt or  disrepute,  or  that  might  excite  the  hatred  of  the  people  against 
the  authors  of  unjust  or  pernicious  measures,  been  uniformly  enforced 
against  the  press,  might  not  the  United  States  have  been  languishing  at 
this  day,  under  the  infirmities  of  a  sickly  confederation?  Might  they  not 
possibly  be  miserable  colonies,  groaning  under  a  foreign  yoke? 

To  these  observations,  one  fact  will  be  added,  which  demonstrates  that 
the  common  law  canriot  be  admitted  as  the  universal  expositor  of  Ameri- 
can terms,  which  may  be  the  same  with  those  contained  in  that  law.  The 
freedom  of  conscience,  and  of  religion,  are  found  in  the  same  instruments 
which  assert  the  freedom  of  the  press.  It  will  never  be  admitted,  that  the 
meaning  of  the  former,  in  the  common  law  of  England,  is  to  limit  their 
meaning  in  the  United  Stales. 

Whatever  weight  may  be  allowed  to  these  considerations,  the  committee 
do  not,  however,  by  any  means  intend  to  rest  the  question  on  them.  They 
contend  that  the  article  of  amendment,  instead  of  supposing  in  Congress  a 
power  that  might  be  exercised  over  the  press,  provided  its  freedom  was 
not  abridged,  was  meant  as  a  positive  denial  to  Congress,  of  any  power 
whatever  on  the  subject. 

To  demonstrate  that  this  was  the  true  object  of  the  article,  it  will  be 
sufficient  to  recall  the  circumstances  which  led  to  it,  and  to  refer  to  the 
explanation  accompanying  the  article. 

When  the  Constitution  was  under  the  discussions  which  preceded  its 
ratification,  it  is  well  known,  that  great  apprehensions  were  expressed  by 
many,  lest  the  omission  of  some  positive  exception  from  the  powers  dele- 
gated, of  certain  rights,  and  of  the  freedom  of  the  press  particularly,  might 
expose  them  to  the  danger  of  being  drawn  by  construction  within  some  of 
the  powers  vested  in  Congress ;  more  especially  of  the  power  to  make  all 
laws  necessary  and  proper  for  carrying  their  other  powers  into  execution. 
In  reply  to  this  objection,  it  was  invariably  urged  to  be  a  fundamental  and 
characteristic  principle  of  the  Constitution,  that  all  powers  not  given  by 
it,  were  reserved  ;  that  no  powers  were  given  beyond  those  enumerated 
in  the  Constitution,  and  such  as  were  fairly  incident  to  them;  that  the 


REPORT  OF  1799.  223 

power  over  the  rights  in  question,  and  particularly  over  the  press,  was 
neither  among  the  enumerated  powers,  nor  incident  to  any  of  them  ;  and 
consequently  that  an  exercise  of  any  such  power,  would  be  a  manifest 
usurpation.  It  is  painful  to  remark,  how  much  the  arguments  now  em- 
ployed in  behalf  of  the  sedition-act,  are  at  variance  with  the  reasoning 
which  then  justified  the  Constitution,  and  invited  its  ratification. 

From  this  posture  of  the  subject,  resulted  the  interesting  question  in  so 
many  of  the  conventions,  whether  the  doubts  and  dangers  ascribed  to  the 
Constitution,  should  be  removed  by  any  amendments  previous  to  the  rati- 
fication, or  be  postponed,  in  confidence  that  as  far  as  they  might  be  proper, 
they  would  be  introduced  in  the  form  provided  by  the  Constitution.  The 
latter  course  was  adopted  ,*  and  in  most  of  the  states,  the  ratifications  were 
followed  by  propositions  and  .instructions  for  rendering  the  Constitution 
more  explicit,  and  more  safe  to  the  rights  not  meant  to  be  delegated  by  it. 
Among  those  rights,  the  freedom  of  the  press,  in  most  instances,  is  parti- 
cularly and  emphatically  mentioned.  The  firm  and  very  pointed  manner, 
in  which  it  is  asserted  in  the  proceedings  of  the  convention  of  this  state, 
will  be  hereafter  seen. 

In  pursuance  of  the  wishes  thus  expressed,  the  first  Congress  that 
assembled  under  the  Constitution,  proposed  certain  amendments  which 
have  since,  by  the  necessary  ratifications,  been  made  a  part  of  it ;  among 
which  amendments,  is  the  article  containing,  among  other  prohibitions  on 
the  Congress,  an  express  declaration  that  they  should  make  no  law 
abridging  the  freedom  of  the  press. 

Without  tracing  farther  the  evidence  on  this  subject,  it  would  seem 
scarcely  possible  to  doubt,  that  no  power  whatever  over  the  press  was 
supposed  to  be  delegated  by  the  Constitution,  as  it  originally  stood  ;  and 
that  the  amendment  was  intended  as  a  positive  and  absolute  reservation 
of  it. 

But  the  evidence  is  still  stronger.  The  proposition  of  amendment  is 
made  by  Congress,  is  introduced  in  the  following  terms :  "  The  conven- 
tions of  a  number  of  the  states  having  at  the  time  of  their  adopting  the 
Constitution  expressed  a  desire,  in  order  to  prevent  misconstructions  or 
abuse  of  its  powers,  that  further  declaratory  and  restrictive  clauses  should 
be  added  ;  and  as  extending  the  ground  of  public  confidence  in  the  govern- 
ment, will  best  ensure  the  beneficent  ends  of  its  institutions" 

Here  is  the  most  satisfactory  and  authentic  proof,  that  the  several 
amendments  proposed,  were  to  be  considered  as  either  declaratory  or 
restrictive ;  and  whether  the  one  or  the  other,  as  corresponding  with  the 
desire  expressed  by  a  number  of  the  states,  and  as  extending  the  ground 
of  public  confidence  in  the  government. 

Under  any  other  construction  of  the  amendment  relating  to  the  press, 
than  that  it  declared  the  press  to  be  wholly  exempt  from  the  power  of 
Congress,  the  amendment  could  neither  be  said  to  correspond  with  the 
desire  expressed  by  a  number  of  the  states,  nor  be  calculated  to  extend 
the  ground  of  public  confidence  in  the  government. 

Nay  more ;  the  construction  employed  to  justify  the  "  sedition-act," 
would  exhibit  a  phenomenon,  without  a  parallel  in  the  political  world.  It 
would  exhibit  a  number  of  respectable  states,  as  denying  first  that  any 


224  REPORT  OF  1799. 

power  over  the  press  was  delegated  by  the  Constitution ;  as  proposing 
next,  that  an  amendment  to  it,  should  explicitly  declare  that  no  such  power 
was  delegated  ;  and  finally,  as  concurring  in  an  amendment  actually  re- 
cognising or  delegating  such  a  power. 

Is  then  the  federal  government,  it  will  be  asked,  destitute  of  every 
authority  for  restraining  the  licentiousness  of  the  press,  and  for  shielding 
itself  against  the  libellous  attacks  which  may  be  made  on  those  who  ad- 
minister it  ? 

The  Constitution  alone  can  answer  this  question.  If  no  such  power  be 
expressly  delegated,  and  it  be  not  both  necessary  and  proper  to  carry  into 
execution  an  express  power;  above  all,  if  it  be  expressly  forbidden  by  a 
declaratory  amendment  to  the  Constitution,  the  answer  must  be,  that  the 
federal  government  is  destitute  of  all  such  authority. 

And  might  it  not  be  asked  in  turn,  whether  it  is  not  more  probable, 
under  all  the  circumstances  which  have  been  reviewed,  that  the  authority 
should  be. withheld  by  the  Constitution,  than  that  it  should  be  left  to  a 
vague  and  violent  construction ;  whilst  so  much  pains  were  bestowed  in 
enumerating  other  powers,  and  so  many  less  important  powers  are  in- 
cluded in  the  enumeration? 

Might  it  not  be  likewise  asked,  whether  the  anxious  circumspection 
which  dictated  so  many  peculiar  limitations  on  the  general  authority, 
would  be  unlikely  to  exempt  the  press  altogether  from  that  authority? 
The  peculiar  magnitude  of  some  of  the  powers  necessarily  committed  to 
the  federal  government;  the  peculiar  duration  required  for  the  functions 
of  some  of  its  departments;  the  peculiar  distance  of  the  seat  of  its  proceed- 
ings from  the  great  body  of  its  constituents ;  and  the  peculiar  difficulty  of 
circulating  an  adequate  knowledge  of  them  through  any  other  channel ; 
will  not  these  considerations,  some  or  other  of  which  produced  other  ex- 
ceptions from  the  powers  of  ordinary  governments,  all  together,  account 
for  the  policy  of  binding  the  hand  of  the  federal  government,  from  touch- 
ing the  channel  which  alone  can  give  efficacy  to  its  responsibility  to  its 
constituents;  and  of  leaving  those  who  administer  it,  to  a  remedy  for  their 
their  injured  reputations,  under  the  same  laws,  and  in  the  same  tribunals, 
which  protect  their  lives,  their  liberties,  and  their  properties  ? 

But  the  question  does  not  turn  either  on  the  wisdom  of  the  Constitution, 
or  on  the  policy  which  gave  rise  to  its  particular  organization.  It  turns 
on  the  actual  meaning  of  the  instrument ;  by  which,  it  has  appeared,  that 
a  power  over  the  press  is  clearly  excluded,  from  the  number  of  powers 
delegated  to  the  federal  government. 

3.  And  in  the  opinion  of  the  committee,  well  may  it  be  said,  as  the 
resolution  concludes  with  saying,  that  the  unconstitutional  power  exercised 
over  the  press  by  the  "sedition-act,"  ought  "more  than  any  other,  to  pro- 
duce universal  alarm ;  because  it  is  levelled  against  that  right  of  freely 
examining  public  characters  and  measures,  and  of  free  communication 
among  the  people  thereon,  which  has  ever  been  justly  deemed  the  only 
effectual  guardian  of  every  other  right." 

Without  scrutinizing  minutely  into  all  the  provisions  of  the  "sedition- 
act,"  it  will  be  sufficient  to  cite  so  much  of  section  2,  as  follows :  "  And 
be  it  further  enacted,  that  if  any  person  shall  write,  print,  utter,  or  publish, 


REPORT  OP  1799.  225 

or  shall  cause  or  procure  to  be  written,  printed,  uttered  or  published,  or 
shall  knowingly  and  willingly  assist  or  aid  in  writing,  printing,  uttering 
or  publishing  any  false,  scandalous  and  malicious  writing  or  writings 
against  the  government  of  the  United  States,  or  either  house  of  the  Con- 
gress of  the  United  States,  or  the  President  of  the  United  States,  with  an 
intent  to  defame  the  said  government ,  or  either  house  of  the  said  Congress, 
or  ike  President^  or  to  bring  them,  or  either  of  them,  into  contempt  or  dis- 
repute; or  to  excite  against  them,  or  either,  or  any  of  them,  the  hatred  of 
tJie  good  people  of  the  United  States,  fyc.  TJien  such  person  being  thereof 
convicted  before^  any  court  of  the  United  States,  having  jurisdiction  thereof, 
shall  be  punished  by  a  fine  not  exceeding  two  thousand  dollars,  and  by 
imprisonment  not  exceeding  two  years." 

On  this  part  of  the  act,  the  following  observations  present  themselves,: 

1.  The  Constitution  supposes  that  the  President,  the  Congress,  and 
each  of  its  houses  may  not  discharge  their  trusts,  either  from  defect  of 
judgment  or  other  causes.     Hence,  they  are  all  made  responsible  to  their 
constituents,  at  the  returning  periods  of  election ;  and  the  President,  who 
is  singly  entrusted  with  very  great  powers,  is,  as  a  further  guard,  sub- 
jected to  an  intermediate  impeachment. 

2.  Should  it  happen,  as  the  Constitution  supposes  it  may  happen,  that 
either  of  these  branches  of  the  government  may  not  have  duly  discharged 
its  trust,  it  is  natural  and  proper  that,  according  to  the  cause  and  degree 
of  their  faults,  they  should  be  brought  into  contempt  or  disrepute,  and 
incur  the  hatred  of  the  people. 

3.  Whether  it  has,  in  any  case,  happened  that  the  proceedings  of 
either,  or  all  of  those  branches,  evince  such  a  violation  of  duty  as  to 
justify  a  contempt,  a  disrepute  or  hatred  among  the  people,  can  only  be 
determined  by  a  free  examination  thereof,  and  a  free  communication 
among  the  people  thereon. 

4.  Whenever  it  may  have  actually  happened,  that  proceedings  of  this 
sort  are  chargeable  on  all  or  either  of  the  branches  of  the  government,  it 
is  the  duty  as  well  as  right  of  intelligent  and  faithful  citizens,  to  discuss 
and  promulge  them  freely,  as  well  to  control  them  by  the  censorship  of 
the  public  opinion,  as  to  promote  a  remedy  according  to  the  rules  of  the 
Constitution.     And  it  cannot  be  avoided,  that  those  who  are  to  apply  the 
remedy  must  feel,  in  some  degree,  a  contempt  or  hatred  against  the  trans- 
gressing party. 

5.  As  the  act  was  passed  on  July  14,  1798,  and  is  to  be  in  force  until 
March  3,  1801,  it  was  of  course,  that  during  its  continuance,  two  elections 
of  the  entire  House  of  Representatives,  an  election  of  a  part  of  the  Senate, 
and  an  election  of  a  President,  were  to  take  place. 

6.  That  consequently,  during  all  these  elections,  intended  by  the  Con- 
stitution to  preserve  the  purity,  or  to  purge  the  faults  of  the  administration, 
the  great  remedial  rights  of  the  people  were  to  be  exercised,  and  the  re- 
sponsibility of  their  public  agents  to  be  screened,  under  the  penalties  of 
this  act. 

May  it  not  be  asked  of  every  intelligent  friend  to  the  liberties  of  his; 
country,  whether  the  power  exercised  in  such  an  act  as  this,  ought  not  to 
produce  greaj;  and  universal  alarm  ?  Whether  a  rigid  execution  of  such 


226  REPORT  OF  1799. 

an  act,  in  time  past,  would  not  have  repressed  that  information  and  com- 
munication among  the  people,  which  is  indispensable  to  the  just  exercise 
of  their  electoral  rights?  And  whether  such  an  act,  if  made  perpetual, 
and  enforced  with  rigour,  would  not,  in  time  to  come,  either  destroy  our 
free  system  of  government,  or  prepare  a  convulsion  that  might  prove 
equally  fatal  to  it? 

In  answer  to  such  questions,  it  has  been  pleaded  that  the  writings  and 
publications  forbidden  by  the  act,  are  those  only  which  are  false  and 
malicious,  and  intended  to  defame ;  and  merit  is  claimed  for  the  privilege 
allowed  to  authors  to  justify,  by  proving  the  truth  of  their  publications, 
and  for  the  limitations  to  which  the  sentence  of  fine  and  imprisonment  is 
subjected. 

To  those  who  concurred  in  the  act,  under  the  extraordinary  belief  that 
the  option  lay  between  the  passing  of  such  an  act,  and  leaving  in  force 
the  common  law  of  libels,  which  -punishes  truth  equally  with  falsehood, 
and  submits  the  fine  and  imprisonment  to  the  indefinite  discretion  of  the 
court,  the  merit  of  good  intentions  ought  surely  not  to  be  refused.  A  like 
merit  may  perhaps  be  due  for  the  discontinuance  of  the  corporal  punish- 
ment,  which  the  common  law  also  leaves  to  the  discretion  of  the  court. 
This  merit  of  intention,  however,  would  have  been  greater,  if  the  several 
mitigations  had  not  been  limited  to  so  short  a  period ;  and  the  apparent 
inconsistency  would  have  been  avoided,  between  justifying  the  act  at  one 
time,  by  contrasting  it  with  the  rigors  of  the  common  law,  otherwise  in 
force,  and  at  another  time  by  appealing  to  the  nature  of  the  crisis,  as  re- 
quiring the  temporary  rigour  exerted  by  the.act. 

But,  whatever  may  have  been  the  meritorious  intentions  of  all  or  any 
who  contributed  to  the  sedition-act,  a  very  few  reflections  will  prove,  that 
its  baneful  tendency  is  little  diminished  by  the  privilege  of  giving  in  evi- 
dence the  truth  of  the  matter  contained  in  political  writings. 

In  the  first  place,  where  simple  and  naked  facts  alone  are  in  question, 
there  is  sufficient  difficulty  in  some  cases,  and  sufficient  trouble  and  vexa- 
tion in  all,  of  meeting  a  prosecution  from  the  government,  with  the  full 
and  formal  proof  necessary  in  a  court  of  law. 

But  in  the  next  place,  it  must  be  obvious  to  the  plainest  minds,  that 
opinions,  and  inferences,  and  conjectural  observations,  are  not  only  in 
many  cases  inseparable  from  the  facts,  but  may  often  be  more  the  objects 
of  the  prosecution  than  the  facts  themselves  ;  or  may  even  be  altogether 
abstracted  from  particular  facts ;  and  that  opinions  and  inferences,  and  con- 
jectural observations,  cannot  be  subjects  of  that  kind  of  proof  which  ap- 
pertains to  facts,  before  a  court  of  law. 

Again :  It  is  no  less  obvious,  that  the  intent  to  defame  or  bring  into 
contempt  or  disrepute,  or  hatred,  which  is  made  a  condition  of  the  offence 
created  by  the  act,  cannot  prevent  its  pernicious  influence  on  the  freedom 
of  the  press.  For,  omitting  the  inquiry,  how  far  the  malice  of  the  intent 
is  an  inference  of  the  law  from  the  mere  publication,  it  is  manifestly  im- 
possible to  punish  the  intent  to  bring  those  who  administer  the  government 
into  disrepute  or  contempt,  without  striking  at  the  right  of  freely  discussing 
public  characters  and  measures:  because  those  who  engage  in  such  dis- 
cussions, must  expect  and  intend  to  excite  these  unfavourable  sentiments, 


REPORT  OF  1709.  227 

so  far  as  they  may  be  thought  to  be  deserved.  To  prohibit,  therefore,  the 
intent  to  excite  those  unfavourable  sentiments  against  those  who  administer 
the  government,  is  equivalent  to  a  prohibition  of  the  actual  excitement  of 
them ;  and  to  prohibit  the  actual  excitement  of  them,  is  equivalent  to  a 
prohibition  of  discussions  having  that  tendency  and  effect ;  which,  again, 
is  equivalent  to  a  protection  of  those  who  administer  the  government,  if 
they  should  at  any  time  deserve  the  contempt  or  hatred  of  the  people, 
against  being  exposed  to  it,  by  free  animadversions  on  their  characters 
and  conduct.  Nor  can  there  be  a  doubt,  if  those  in  public  trust  be  shielded 
by  penal  laws  from  such  strictures  of  the  press,  as  may  expose  them  to 
contempt  or  disrepute,  or  hatred,  where  they  may  deserve  it,  in  exact  pro- 
portion as  they  may  deserve  to  be  exposed,  will  be  the  certainty  and 
criminality  of  the  intent  to  expose  them,  and  the  vigilance  of  prosecuting 
and  punishing  it ;  nor  a  doubt,  that  a  government  thus  intrenched  in  penal 
statutes,  against  the  just  and  natural  effects  of  a  culpable  administration, 
will  easily  evade  the  responsibility,  which  is  essential  to  a  faithful  discharge 
of  its  duty. 

Let  it  be  recollected,  lastly,  that  the  right  of  electing  the  members  of 
the  government,  constitutes  more  particularly  the  essence  of  a  free  and 
responsible  government.  The  value  and  efficacy  of  this  right,  depends  on 
the  knowledge  of  the  comparative  merits  and  demerits  of  the  candidates 
for  public  trust  ,*  and  on  the  equal  freedom,  consequently,  of  examining  and 
discussing  these  merits  and  demerits  of  the  candidates  respectively.  It 
has  been  seen,  that  a  number  of  important  elections  will  take  place  whilst 
the  act  is  in  force,  although  it  should  not  be  continued  beyond  the  term  to 
which  it  is  limited.  Should  there  happen,  then,  as  is  extremely  probable 
in  relation  to  some  or  other  of  the  branches  of  the  government,  to  be  com- 
petitions between  those  who  are,  and  those  who  are  not,  members  of  the 
government,  what  will  be  the  situations  of  the  competitors?  Not  equal ; 
because  the  characters  of  the  former  will  be  covered  by  the  "  sedition-act" 
from  animadversions  exposing  them  to  disrepute  among  the  people ;  whilst 
the  latter  may  be  exposed  to  the  contempt  and  hatred  of  the  people,  with- 
out a  violation  of  the  act.  What  will  be  the  situation  of  the  people? 
Not  free ;  because  they  will  be  compelled  to  make  their  election  between 
competitors,  whose  pretensions  they  are  not  permitted }-by  the  act,  equally 
to  examine,  to  discuss,  and  to  ascertain.  And  from  both  these  situations, 
will  not  those  in  power  derive  an  undue  advantage  for  continuing  them- 
selves in  it ;  which  by  impairing  the  right  of  election,  endangers  the 
blessings  of  the  government  founded  on  it? 

It  is  with  justice,  therefore,  that  the  General  Assembly  have  affirmed  in 
the  resolution,  as  well  that  the  right  of  freely  examining  public  characters 
and  measures,  and  free  communication  thereon,  is  the  only  effectual 
guardian  of  every  other  right,  as  that  this  particular  right  is  levelled  at, 
by  the  power  exercised  in  the  "  sedition-act." 

The  resolution  next  in  order  is  as  follows : 

That  this  state  having  by  its  convention,  which  ratified  the  federal 
Constitution,  expressly  declared,  that  among  other  essential  rights,  "  the 
liberty  of  conscience  and  of  the  press  cannot  be  cancelled,  abridged,  re- 
strained or  modified  by  any  authority  of  the  United  States"  and  from 


228  REPORT  OP  1799. 

\ 

its  extreme  anxiety  to  guard  these  rights  from  every  possible  attack  of  so- 
phistry and  ambition,  having,  with  other  states,  recommended  an  amend- 
ment for  that  purpose,  which  amendment  was,  in  due  time,  annexed  to 
the  Constitution,  it  would  mark  a  reproachful  inconsistency,  and  crimi- 
nal degeneracy,  if  an  indifference  were  now  shoicn  to  the  most  palpable 
violation  of  one  of  the  rights  thus  declared  and  secured;  and  the  establish- 
ment of  a  precedent,  which  may  be  fatal  to  the  other. 

To  place  this  resolution  in  its  just  light,  it  will  be  necessary  to  recur  to 
the  act  of  ratification  by  Virginia,  which  stands  in  the  ensuing  form  : 

We,  the  delegates  of  the  people  of  Virginia,  duly  elected  in  pursuance 
of  a  recommendation  from  the  General  Assembly,  and  now  met  in  conven- 
tion, having  fully  and  freely  investigated  and  discussed  the  proceedings 
of  the  federal  convention,  and  being  prepared  as  well  as  the  most  mature 
deliberation  hath  enabled  us  to  decide  thereon,  do,  in  the  name  and  in 
behalf  of  the  people  of  Virginia,  declare  and  make  knoivn,  that  the  powers 
granted  under  the  Constitution,  being  derived  from  the  people  of  the 
United  States,  may  be  resumed  by  them,  ivhensoever  the  same  shall  be 
perverted  to  their  injury  or  oppression  ;  and  that  every  power  not  granted 
thereby,  remains  with  them,  and  at  their  will.  That,  therefore,  no  right 
of  any  denomination  can  be  cancelled,  abridged,  restrained,  or  modified, 
by  the  Congress,  by  the  Senate,  or  House  of  Representatives,  acting  in 
any  capacity,  by  the.  President,  or  any  department  or  officer  of  the  United 
States,  except  in  those  instances  in  which  poiver  is  given  by  the,  Constitu- 
tion for  those  purposes  ;  and  that,  among  other  essential  rights,  the  liberty 
of  conscience  and  of  the  press,  cannot  be  cancelled,  abridged,  restrained, 
or  modified,  by  any  authority  of  the  United  States. 

Here  is  an  express  and  solemn  declaration  by  the  convention  of  the 
state,  that  they  ratified  the  Constitution  in  the  sense,  that  no  right  of  any 
denomination  can  be  cancelled,  abridged,  restrained,  or  modified  by  the 
government  of  the  United  States  or  any  part  of  it ;  except  in  those  in- 
stances in  which  power  is  given  by  the  Constitution ;  and  in  the  sense 
particularly,  "that  among  other  essential  rights,  the  liberty  of  conscience 
and  freedom  of  the  press  cannot  be  cancelled,  abridged,  restrained,  or 
modified,  by  any  authority  of  the  United  States." 

Words  could  not  well  express,  in  a  fuller  or  more  forcible  manner,  the 
understanding  of  the  convention,  that  the  liberty  of  conscience  and  the 
freedom  of  the  press,  were  equally  and  completely  exempted  from  all 
authority  whatever  of  the  United  States. 

Under  an  anxiety  to  guard  more  effectually  these  rights  against  every 
possible  danger,  the  convention,  after  ratifying  the  Constitution,  proceeded 
to  prefix  to  certain  amendments  proposed  by  them,  a  declaration  of  rights, 
in  which  are  two  articles  providing,  the  one/or  the  liberty  of  conscience, 
the  other  for  the  freedom  of  speech  and  of  the  press. 

Similar  recommendations  having  proceeded  from  a  number  of  other 
states,  and  Congress,  as  has  been  seen,  having  in  consequence  thereof, 
and  with  a  view  to  extend  the  ground  of  public  confidence,  proposed, 
among  other  declaratory  and  restrictive  clauses,  a  clause  expressly 
securing  the  liberty  of  conscience  and  of  the  press ;  and  Virginia  having 
concurred  in  the  ratifications  which  made  them  a  part  of  the  Constitution, 


REPORT  OF  1799.  229 

it  will  remain  with  a  candid  public  to  decide,  whether  it  would  not  mark 
an  inconsistency  and  degeneracy,  if  an  indifference  were  now  shown  to  a 
palpable  violation  of  one  of  those  rights,  the  freedom  of  the  press  ;  and  to 
a  precedent  therein,  which  may  be  fatal  to  the  other,  the  free  exercise  of 
religion. 

That  the  precedent  established  by  the  violation  of  the  former  of  these 
rights,  may,  as  is  affirmed  by  the  resolution,  be  fatal  to  the  latter,  appears 
to  be  demonstrable,  by  a  comparison  of  the  grounds  on  which  they  respec- 
tively rest ;  and  from  the  scope  of  reasoning,  by  which  the  power  over 
the  former  has  been  vindicated. 

First.  Both  of  these  rights,  the  liberty  of  conscience  and  of  the  press, 
rest  equally  on  the  original  ground  of  not  being  delegated  by  the  Consti- 
tution, and  consequently  withheld  from  the  government.  Any  construc- 
tion, therefore,  that  would  attack  this  original  security  for  the  one,  must 
have  the  like  effect  on  the  other. 

Secondly.  They  are  both  equally  secured  by  the  supplement  to  the 
Constitution ;  being  both  included  in  the  same  amendment,  made  at  the 
same  time,  and  by  the  same  authority.  Any  construction  or  argument, 
then,  which  would  turn  the  amendment  into  a  grant  or  acknowledgment 
of  power  with  respect  to  the  press,  might  be  equally  applied  to  the  free- 
dom of  religion. 

Thirdly.  If  it  be  admitted  that  the  extent  of  the  freedom  of  the  press, 
secured  by  the  amendment,  is  to  be  measured  by  the  common  law  on  this 
subject,  the  same  authority  may  be  resorted  to,  for  the  standard  which  is 
to  fix  the  extent  of  the  "  free  exercise  of  religion."  It  cannot  be  neces- 
sary to  say  what  this  standard  would  be ;  whether  the  common  law  be 
taken  solely  as  the  unwritten,  or  as  varied  by  the  written  law  of  England. 

Fourthly.  If  the  words  and  phrases  in  the  amendment,  are  to  be  con- 
sidered as  chosen  with  a  studied  discrimination,  which  yields  an  argument 
for  a  power  over  the  press,  under  the  limitation  that  its  freedom  be  not 
abridged,  the  same  argument  results  from  the  same  consideration,  for  a 
power  over  the  exercise  of  religion,  under  the  limitation  that  its  freedom 
be  not  prohibited. 

For,  if  Congress  may  regulate  the  freedom  of  the  press,  provided  they 
do  not  abridge  it,  because  it  is  said  only  "  they  shall  not  abridge  it,"  and 
is  not  said,  "  they  shall  make  no  law  respecting  it,"  the  analogy  of 
reasoning  is  conclusive,  that  Congress  may  regulate  and  even  abridge  the 
free  exercise  of  religion,  provided  they  do  not  prohibit  it,  because  it  is  said 
only  "  they  shall  not  prohibit  it,"  and  is  not  said,  "  they  shall  make  no 
law  respecting,  or  no  law  abridging  it." 

The  General  Assembly  were  governed  by  the  clearest  reason,  then,  in 
considering  the  "  sedition-act,"  which  legislates  on  the  freedom  of  the 
press,  as  establishing  a  precedent  that  may  be  fatal  to  the  liberty  of  con- 
science; and  it  will  be  the  duty  of  all,  in  proportion  as  they  value  the 
security  of  the  latter,  to  take  the  alarm  at  every  encroachment  on  the 
former. 

The  two  concluding  resolutions  only  remain  to  be  examined.  They 
are  in  the  words  following : 

That  the  good  people  of  this  commonwealth^  having  ever  felt  and  con- 


230  REPORT  OF  1799. 

tinuing  to  feel  the  most  sincere  affection  for  their  brethren  of  the  other 
states  ;  the  truest  anxiety  for  establishing  and  perpetuating  the  union  of 
all ;  and  the  most  scrupulous  fidelity  to  that  Constitution,  which  is  the 
pledge  of  mutual  friendship,  and  the  instrument  of  mutual  happiness; 
the  General  Assembly  doth  solemnly  appeal  to  the  like  dispositions  in  the 
other  states,  in  confidence  that  they  will  concur  with  this  commonwealth 
in  declaring,  as  it  does  hereby  declare,  that  the  acts  aforesaid  are  uncon- 
stitutional;* and,  that  tJie  necessary  and  proper  measures  will  be  taken 
by  each,  for  co-operating  with  this  state,  in  maintaining  unimpaired 
the  authorities,  rights,  and  liberties  reserved  to  the  states  respectively,  or 
to  the  people. 

That  the  governor  be  desired  to  transmit  a  copy  of  the  foregoing  reso- 
lutions to  the  executive  authority  of  each  of  the  other  states,  with  a  request 
that  the  same  may  be  communicated  to  the  legislature  thereof;  and  that  a 
copy  be  furnished  to  each  of  the  senators  and  representatives  representing 
this  state  in  the  Congress  of  the  United  States. 

The  fairness  and  regularity  of  the  course  of  proceeding  here  pursued, 
have  not  protected  it  against  objections  even  from  sources  too  respectable 
to  be  disregarded; 

It  has  been  said,  that  it  belongs  to  the  judiciary  of  the  United  States, 
and  not  the  state  legislatures,  to  declare  the  meaning  of  the  Federal  Con- 
stitution. 

But  a  declaration  that  proceedings  of  the  Federal  Government  are  not 
warranted  by  the  Constitution,  is  a  novelty  neither  among  the  citizens,  nor 
among  the  legislatures  of  the  states ;  nor  are  the  citizens  or  the  legisla- 
ture of  Virginia,  singular  in  the  example  of  it. 

»      Nor  can  the  declarations  of  either,  whether  affirming  or  denying  the 

/  constitutionality  of  measures  of  the  Federal    Government,  or  whether 

made  before  or  after  judicial  decisions  thereon,  be  deemed,  in  any  point  of 

view,  an  assumption  of  the  office  of  the  judge.    The  declarations,  in  such 

cases,  are  expj^ssiqns  of  opinion,  unaccompanied  with  any  other  effect 

than  what  they  may  produce  on  opinion,  by  ..exciting  reflection.     The 

v     expositions  of  the  judiciary,  on  the  other  hand,  are  carried  into  immediate 

^    effect  by  force.     The  former  may  lead  to  a  change  in  the  legislative  ex- 

*  In  the  original  resolutions  as  submitted  by  Mr.  John  Taylor,  there  followed  after 
the  word  "unconstitutional,"  the  words  "and  not  law,  but  utterly  null,  void,  and  of  no 
force  or  effect."  In  the  course  of  the  debate,  they  were  stricken  out  upon  motion  of 
Mr.  Taylor  himself.  (See  ante,  p.  150.)  Mr.  Madison's  explanation  of  this  fact,  in 
his  letter  to  Mr.  Everett,  (see  post,  Appendix,  p.  256,)  is,  that  although  these  words 
were,  in  fact,  but  synonymous  with  " unconstitutional,"  yet  to  guard  against  a  mis- 
understanding  of  this  phrase,  as  more  than  declaratory  of  opinion,  the  word  "  uncon- 
stitutional" was  alone  retained  as  not  liable  to  that  danger.  This  explanation  is 
abundantly  supported  by  the  circumstances.  Mr.  John  Taylor  had  contended  that 
the  resolution  in  question,  merely  expressed  the  opinion  of  the  legislature,  such  as 
it  was  competent  to  it  to  express,  as  a  necessary  concomitant  of  an  attempt  to  procure 
an  amendment  to  the  Constitution  from  the  other  states.  (Ante,  p.  112-13.)  Mr. 
G.  K.  Taylor,  on  the  other  hand,  insisted  that  the  words  used,  imported  not  merely 
an  opinion,  but  a  fact,  which  discharged  the  people  from  any  submission  to  the  laws 
thus  denounced  (ante,  p.  140) ;  and  then  Mr.  J.  Taylor  moved  to  strike  out  the 
words  above  mentioned. 


REPORT  OF  1799.  231 

pression  of  the  general  will ;  possibly  to  a  change  in  the  opinion  of  the 
judiciary ;  the  latter  enforces  the  general  will,  whilst  that  will  and  that 
opinion  continue  unchanged. 

And  if  there  be  no  impropriety  in  declaring  the  unconstitutionality  of 
proceedings  in  the  Federal  Government,  where  can  be  the  impropriety  of 
communicating  the  declaration  to  other  states,  and  inviting  their  concur- 
rence in  a  like  declaration?  What  is  allowable  for  one,  must  be  allow- 
able for  all ;  and  a  free  communication  among  the  states,  where  the  Con- 
stitution imposes  no  restraint,  is  as  allowable  among  the  state  governments 
as  among  other  public  bodies  or  private  citizens.  This  consideration 
derives  a  weight,  that  cannot  be  denied  to  it,  from  the  relation  of  the  state 
legislatures  to  the  federal  legislature,  as  the  immediate  constituents  of  one 
of  its  branches. 

The  legislatures  of  the  states  have  a  right  also  to  originate  amendments 
to  the  Constitution,  by  a  concurrence  of  two-thirds  of  the  whole  number, 
in  applications  to  Congress  for  the  purpose.  When  new  states  are  to  be 
formed  by  a  junction  of  two  or  more  states,  or  parts  of  states,  the  legisla- 
tures of  the  states  concerned  are,  as  well  as  Congress,  to  concur  in  the 
measure.  The  states  have  a  right  also  to  enter  into  agreements  or  com- 
pacts, with  the  consent  of  Congress.  In  all  such  cases,  a  communication 
among  them  results  from  the  object  which  is  common  to  them. 

It  is  lastly  to  be  seen,  whether  the  confidence  expressed  by  the  resolu- 
tion, that  the  necessary  and  proper  measures  would  be  taken  by  the  other 
states  for  co-operating  with  Virginia  in  maintaining  the  rights  reserved  to 
the  states,  or  to  the  people,  be  in  any  degree  liable  to  the  objections  which 
have  been  raised  against  it. 

If  it  be  liable  to  objection,  it  must  be  because  either  the  object  or  the 
means  are  objectionable. 

The  object  being  to  maintain  what  the  Constitution  has  ordained,  is  in 
itself  a  laudable  object. 

The  means  are  expressed  in  the  terms  "  the  necessary  and  proper  mea- 
sures." A  proper  object  was  to  be  pursued,  by  means  both  necessary  and 
proper. 

To  find  an  objection,  then,  it  must  be  shown  that  some  meaning  was 
annexed  to  these  general  terms,  which  was  not  proper;  and,  for  this  pur- 
pose, either  that  the  means  used  by  the  General  Assembly  were  an  exam- 
ple of  improper  means, 'or  that  there  were  no  proper  means  to.  which  the 
terms  could  refer. 

In  the  example  given  by  the  state,  of  declaring  the  alien  and  sedition- 
acts  to  be  unconstitutional,  and  of  communicating  the  declaration  to  the 
other  states,  no  trace  of  improper  means  has  appeared.  And  if  the  other 
states  had  concurred  in  making  a  like  declaration,  supported,  too,  by  the 
numerous  applications  flowing  immediately  from  the  people,  it  can  scarcely 
be  doubted,  that  these  simple  means  would  have  been  as  sufficient,  as  they 
are  unexceptionable. 

It  is  no  less  certain  that  other  means  might  have  been  employed,  which 
are  strictly  within  the  limits  of  the  Constitution.  The  legislatures  of  the 
states  might  have  made  a  direct  representation  to  Congress,  with  a  view 
to  obtain  a  rescinding  of  the  two  offensive  acts ;  or,  they  might  have 


232  REPORT  OF  1799. 

represented  to  their  respective  senators  in  Congress  their  wish,  that  two- 
thirds  thereof  would  propose  an  explanatory  amendment  to  the  Constitu- 
tion ;  or  two-thirds  of  themselves,  if  such  had  been  their  option,  might, 
by  an  application  to  Congress,  have  obtained  a  convention  for  the  same 
object. 

These  several  means,  though  not  equally  eligible  in  themselves,  nor  pro- 
bably, to  the  states,  were  all  constitutionally  open  for  consideration.  -And 
if  the  General  Assembly,  after  declaring  the  two  acts  to  be  unconstitu- 
tional, the  first  and  most  obvious  proceeding  on  the  subject,  did  not  under- 
take to  point  out  to  the  other  states  a  choice  among  the  farther  measures 
that  might  become  necessary  and  proper,  the  reserve  will  not  be  miscon- 
strued by  liberal  minds  into  any  culpable  imputation. 

These  observations  appear  to  form  a  satisfactory  reply  to  every  objec- 
tion which  is  not  founded  on  a  misconception  of  the  terms  employed  in 
the  resolutions.  There  is  one  other,  however,  which  may  be  of  too  much 
importance  not  to  be  added.  It  cannot  be  forgotten,  that  among  the  argu- 
ments addressed  to  those  who  apprehended  danger  to  liberty  from  the 
establishment  of  the  General  Government  over  so  great  a  country,  the 
appeal  was  emphatically  made  to  the  intermediate  existence  of  the  state 
governments,  between  the  people  and  that  government,  to  the  vigilance 
with  which  they  would  descry  the  first  symptoms  of  usurpation,  and  to 
the  promptitude  with  which  they  would  sound  the  alarm  to  the  public. 
This  argument  was  probably  not  without  its  effect;  and  if  it  was  a  proper 
one  then,  to  recommend  the  establishment  of  the  Constitution,  it  must  be 
a  proper  one  now,  to  assist  in  its  interpretation. 

The  only  part  of  the  two  concluding  resolutions  that  remains  to  be 
noticed,  is  the  repetition  in  the  first,  of  that  warm  affection  to  the  union 
and  its  members,  and  of  that  scrupulous  fidelity  to  the  Constitution,  which 
have  been  invariably  felt  by  the  people  of  this  state.  As  the  proceedings 
were  introduced  with  these  sentiments,  they  could  not  be  more  properly 
closed  than  in  the  same  manner.  Should  there  be  any  so  far  misled  as 
to  call  in  question  the  sincerity  of  these  professions,  whatever  regret  may 
be  excited  by  the  error,  the  General  Assembly  cannot  descend  into  a  dis- 
cussion of  it.  Those,  who  have  listened  to  the  suggestion,  can  only  be 
left  to  their  own  recollection  of  the  part  which  this  state  has  borne  in  the 
establishment  of  our  national  independence,  in  the  establishment  of  our 
national  Constitution,  and  in  maintaining  under  it  the  authority  and  laws 
of  the  Union,  without  a  single  exception  of  internal  resistance  or  commo- 
tion. By  recurring  to  these  facts,  they  will  be  able  to  convince  themselves, 
that  the  representatives  of  the  people  of  Virginia,  must  be  above  the  neces- 
sity of  opposing  any  other  shield  to  attacks  on  their  national  patriotism, 
than  their  own  consciousness,  and  the  justice  of  an  enlightened  public; 
who  will  perceive  in  the  resolutions  themselves,  the  strongest  evidence  of 
attachment  both  to  the  Constitution  and  to  the  Union,  since  it  is  only  by 
maintaining  the  different  governments  and  departments  within  their  re- 
spective limits,  that  the  blessings  of  either  can  be  perpetuated. 

The  extensive  view  of  the  subject  thus  taken  by  the  committee,  has  led 
them  to  report  to  the  House,  as  the  result  of  the  whole,  the  following  reso- 
lution : 


REPORT  OF  1799. 


233 


Resolved,  That  the  General  Assembly,  having  carefully  and  respect- 
fully  attended  to  the  proceedings  of  a  number  of  the  stales,  in  answer  to 
its  resolutions  of  December  21,  1798,  and  having  accurately  and  fully 
re-examined  and  reconsidered  the  latter,  finds  it  to  be  its  indispensable 
duty  to  adhere  to  the  same,  as  founded  in  truth,  as  consonant  with  the 
Constitution,  and  as  conducive  to  its  preservation ;  and  more  especially 
to  be  its  duty  to  renew,  as  it  does  hereby  renew,  its  protest  against 
"the  alien  and  sedition-acts,"  as  palpable  and  alarming  infractions  of  the 
Constitution. 


The  foregoing  report  was  industriously  circulated  amongst  the  people 
by  virtue  of  the  following  resolution. 

IN  THE  HOUSE  OF  DELEGATES, 

Monday,  January  20, 1800. 

Resolved,  That  five  thousand  copies  of  the  report  of  the  select  com- 
mittee,  to  whom  were  referred  the  answers  of  several  states  upon  the  reso- 
lutions of  the  last  legislature,  the  said  answers,  and,  also,  the  instructions 
to  the  senators  of  this  state,  in  the  Congress  of  the  United  States,  together 
with  the  names  of  those  who  voted  on  each  of  those  subjects,  be  printed 
without  delay;  and  that  the  executive  be  requested,  as  soon  as  may  be, 
to  distribute  them  equally,  in  such  manner  as  it  shall  think  best,  among 
the  good  people  of  this  commonwealth. 
Attest, 

WILLIAM  WIRT,  C.  H.  D. 

H.  BROOKE,  C.  S. 


At  the  time  of  adopting  this  report,  the  General  Assembly  was  com- 
posed  of  the  following  persons — the  names  of  the  Federalists  being  in 
italics : 


HOUSE  OF  DELEGATES. 


ACCOMAC. 
John  Wise, 
Thos.  M.  Bailey. 

AMHERST. 

David  S.  Garland, 
Wra.  B.  Hare. 

AUGUSTA. 

Robt.  Doake, 
Andrew  Anderson. 


ALBEMARLE. 

Francis  Walker, 
Wm.  Woods. 

AMELIA. 

Wm.  B.  Giles, 
Joshua  Chaffin. 


Samuel  Blackburn, 
Samuel  Vance. 


234 


BEPORT  OP  1799. 


BEDFORD. 

Samuel  Hancock, 
Isaac  Otey. 

BERKELEY. 

Magnus  Tate, 
Alex.  White. 

BOTETOURT. 

James  Breckenridgc, 
John  Miller. 

BRUNSWICK. 
James  Fletcher, 
Wm.  Ruffin. 

BUCKINGHAM. 

Linnseus  Boiling, 
Charles  Yancey. 

BROOKE. 

Robert  Calwell, 
Jno.  G.  Young. 

CAMPBELL. 

Thomas  West, 
John  F.  Powell. 


John  Taylor, 
George  Buckner. 

CHARLOTTE. 

Thos.  Read, 
Wm.  Price. 

CHARLES  CITY. 

Collier  Harrison, 
Samuel  Tyler. 

CHESTERFIELD. 

Matthew  Cheatham, 
Thos.  A.  Taylor. 

CUMBERLAND. 

Wm.  Daniel,  Jr., 
James  Deane. 

iDULPEPER. 

John  Roberts, 
Moses  Green. 

DINWIDDIE. 

Peterson  Goodwin, 
John  Pegram,  Jr. 

ELIZABETH  CITY. 

George  Booker, 
W.  Westwood. 


J[ohn  Daingerfield, 
James  Garnett. 


FAIRFAX. 

Richard  B.  Lee, 
Thomas  Swann. 

FAUQUIER. 
William  Clarkson, 
Elias  Edmonds. 

FLU VAN NA. 

Joseph  Haden, 
James  Payne. 

FREDERICK. 

Archibald  Magill, 
George  Eskridge. 

FRANKLIN. 

Moses  Greer, 
Benjamin  Cooke. 

GREENESVILLE. 

Nathaniel  Rieves, 
Braxton  Robinson. 

GLOUCESTER. 

Wm.  Hall, 
Christopher  Garland. 

GOOCHLAND. 

James  Pleasants,  Jr., 
Wm.  Lee. 

GREENBRIAR. 

John  Matthews, 
Wm.  H.  Cavendish. 

GRAYSON. 

Philip  Gaines. 

HALIFAX. 

John  B.  Scott, 
Richard  Howson. 

HAMPSHIRE. 

Fielding  Calmes, 
John  Higgins. 


Thomas  Starke, 
Thomas  White. 


John  G.  Jackson, 
John  Prunty. 

HARDY. 
Jacob  Fisher, 
Christian  Simons. 

HENRICO. 
Miles  Selden, 
Wm.  Price. 


REPORT  OF  1799. 


235 


HENRY. 

Joseph  Martin, 
John  Redd. 

ISLE  OF  WIGHT. 

Dolphin  Driver, 
James  Johnston. 

JAMES  CITY. 

Littleton  W.  Tazewell, 
Wm.  Lightfoot. 

KING  AND  QUEEN. 

Richard  Corbin, 
Larkin  Smith. 

KANAWHA. 

Thomas  Lewis, 
David  Ruffner. 

KING  GEORGE. 

Gustavus  B.  Wallace, 
Burdett  Ashton. 

KING  WILLIAM. 

Robert  Pollard, 
Nathaniel  Burwell. 

LANCASTER. 

Joseph  Carter, 
James  Ball. 

LOUDOUN. 
Joseph  Lewis, 
Wm.  Noland. 

LOUISA. 

Wm.  O.  Callis, 
Robt.  Yancey. 

LEE. 

Charles  Cocke, 
David  Chadwell. 

LUNENBURG. 

Francis  Epes, 
Wm.  Cowan. 

MATTHEWS. 

Zadock  Litchfield, 
Joseph  Billups,  Jr. 

MADISON. 
Robert  Roebuck, 
Henry  Hill. 

MECKLENBURG. 

Edward  L.  Tabb, 
John  Nelson. 

MIDDLESEX. 

Churchill  Blakey, 
Robt.  B  Daniel. 


MONONGALIA. 

John  Evans, 
Thomas  WiZson. 

MONTGOMERY. 

James  Craig, 
Daniel  Howe. 

NANSEMOND. 

Willis  Riddick, 
Wm.  Sumner. 

NEW  KENT. 

John  D.  Watkins, 
James  Taylor. 


Thomas  Matthews, 
Robert  Butt. 

NORTHAMPTON. 

Nathaniel  Darby, 
Wm.  Satchell. 

NORTHUMBERLAND. 

Wm.  Claughton, 
Wm.  Ball. 

NOTTOWAY. 

Freeman  Epes, 
Grief  Green. 


Benjamin  Biggs, 
Ebenezer  Zane. 

ORANGE. 

James  Madison, 
James  Barbour. 

PITTSYLVANIA. 

Theodoric  B.  M' Robert, 
Thomas  H.  Wooding. 

POWHATAN. 

Wm.  Moseley, 
Frederick  Woodson. 

PRINCE  EDWARD. 

Peter  Johnston, 
Charles  Scott. 

PRINCE  GEORGE. 

James  Cureton, 
George  K.  Taylor. 

PRINCE  WILLIAM. 

John  Pope, 
Thomas  Mason. 

PRINCESS  ANNE. 

James  Robinson, 
Thomas  Lawson. 


236 


REPORT  OF  1799. 


PENDLETON. 

STAFFORD. 

William  MCoy, 
Jacob  Hull. 

Nathaniel  Fox, 
Daniel  C.  Brent. 

PATRICK. 

8URRY. 

Joshua  Rentfro, 
Archelaus  Hughes. 

Canfield  Seward, 
Nicholas  SebrelL 

RANDOLPH. 

SUSSEX. 

William  Wilson, 
John  Hadden. 

John  R.  Mason, 
Robert  Smith. 

RICHMOND. 

WARWICK. 

Richard  Barnes, 
William  M'Carty. 

Richard  Gary, 
John  Burnham. 

ROCKBRIDOE. 

WESTMORELAND. 

John  Bowyer, 
Andrew  Moore. 

Henry  S.  Turner, 
George  Garner. 

ROCKINGHAM. 

WASHINGTON. 

Benj.  Harrison, 
George  Huston. 

Samuel  Meek, 
James  Dysart. 

RUSSELL. 

WTTHE. 

Simon  Cockrell, 
James  M'Farlane. 

Samuel  Crockett, 
John  Evans. 

•HENANDOAH. 

YORK. 

John  Gatewood, 
Wm.  H.  Dulaney. 

Samuel  Shield, 
Thomas  Griffin. 

SOUTHAMPTON. 

Wm.  Blow, 
Wm.  Bailey. 

RICHMOND  CITY. 

Charles  Copland. 

WILLIAMSBURG. 

SPOTT8YLVANIA. 

Benjamin  C.  Waller. 

John  Mercer, 
Larkin  Stannard. 

NORFOLK  BOROUGH. 

Robert  B.  Taylor. 

SENATE. 


The  names  of  the  senators  will  appear,  so  far  as  the  vote  taken  upon 
the  report  is  concerned,  from  the  ayes  and  noes,  on  the  next  page. 


The  vote  upon  the  report,  as  proposed  by  the  committee,  was  taken  in 
the  House  of  Delegates  on  the  7th  of  January,  1800,  and  in  the  Senate  on 
the  18th. 

The  names  of  those  who  voted  on  either  side  are  as  follows : 


IN  THE  HOUSE  OF  DELEGATES. 

In  the  affirmative.— Messrs.  Smith  (Speaker),  Walker,  Woods,  Giles, 


REPORT  OP  1799.  237 

Chaffin,  David  S.  Garland,  Hare,  Vance,  Calwell,  Young,  Ruffin,  Charles 
Yancey,  Boiling,  Buckner,  Read,  Price  (of  Charlotte),  Collier  Harrison, 
Tyler,  Cheatham,  Thomas  A.  Taylor,  Roberts,  Moses  Green,  William 
Daniel,  Deane,  Pegram,  Goodwyn,  Booker,  Westwood,  Daingerfield, 
Garnett,  Haden,  Payne,  Greer,  Cook,  Hall,  Christopher  Garland,  Plea- 
sants,  William  Lee,  Gaines,  John  B.  Scott,  Howson,  Calmes,  Higgins, 
Selden,  Price  (of  Henrico),  Starke,  Thomas  White,  Jackson,  Prunty, 
Martin,  Redd,  Driver,  James  Johnston,  Lightfoot,  Callis,  Francis  Epes, 
Hill,  Roebuck,  Billups,  Litchfield,  Blakey,  Ro.  B.  Daniel,  Craig,  Howe, 
Riddick,  Claughton,  Ball,  Freeman  Epes,  Grief  Green,  Madison,  Barbour, 
M'Roberts,  Moseley,  Woodson,  Peter  Johnston,  Pope,  Thomas  Mason, 
Rentfro,  Haddan,  Barnes,  M'Carty,  Bowyer,  Moore,  Benjamin  Harrison, 
Huston,  Cockrell,  M'Farlane,  Dulaney,  Gatewood,  Mercer,  Stannard, 
Fox,  Seward,  Sebrell,  Burnham,  Meek,  Dysart,  John  Evans,  Shield, 
Waller.— 100. 

In  the  negative. — Messrs.  Wise,  Thomas  Bailey,  Doake,  Anderson, 
Blackburn,  Hancock,  Otey,  Tate,  Alex.  White,  Breckenridge,  Miller, 
West,  Powell,  Swann,  Richard  B.  Lee,  Clarkson,  Edmonds,  Magill, 
Eskridge,  John  Matthews,  Cavendish,  Braxton  Robinson,  Fisher,  Simon, 
Thomas  Lewis,  Ruffner,  Wallace,  Ashton,  Burwell,  Ball,  Joseph  Lewis  Jr., 
Noland,  Cowan,  Nelson,  Tabb,  John  Evans,  Jr.,  Thomas  Wilson,  Sumner, 
Watkins,  James  Taylor,  Butt,  Darby,  Satchell,  Biggs,  Wooding,  Charles 
Scott,  George  K.  Taylor,  Cureton,  Lawson,  James  Robinson,  M'Coy, 
Hull,  Blow,  William  Bailey,  Garner,  Turner,  Crockett,  Griffin,  Copland, 
Ro.  B.  Taylor.— 60. 

IN  THE  SENATE. 

In  the  affirmative. — Messrs.  Creed  Taylor,  Richard  Kennon,  Burwell 
Bassett,  Thomas  Royster,  Nicholas  Faulcon,  Holden  Hudgins,  French 
Strother,  Thomas  Ridley,  John  Preston,  John  Hoomes,  Benjamin  Temple, 
Thomas  Newton,  Nicholas  Cabell,  George  Penn,  Robert  Saunders. — 15. 

In  the  negative. — Messrs.  John  Tayloe,  Francis  Peyton,  Charles  Ma- 
gill,  Gideon  Spencer,  John  Raymond,  John  Eyre. — 6. 

03"  The  Senate  then  consisted  of  twenty-four  members,  so  that  three 
did  not  vote. 


VI. 
INSTRUCTIONS  TO  VIRGINIA  SENATORS. 


IN  THE  HOUSE  OF  DELEGATES, 

Saturday,  January  11, 1800. 

THE  House  proceeded  to  consider  the  instructions  from  the  General 
Assembly  of  Virginia,  to  STEPHENS  THOMPSON  MASON  and  WILSON  GARY 
NICHOLAS,  senators  from  the  state  of  Virginia,  in  the  Congress  of  the 
United  States.  The  instructions  are  as  follows : — 

The  General  Assembly  of  the  commonwealth"  of  Virginia,  though  it 
entertains  no  doubt  of  your  punctual  performance  of  your  duty,  or  of  your 
faithful  adherence  to  the  great  principles  of  constitutional  law,  and  national 
policy,  deems  it  incumbent  on  it  to  communicate  its  opinions,  formed  after 
the  most  mature  deliberation,  on  certain  subjects  essentially  connected, 
as  it  solemnly  believes,  with  the  dearest  rights,  and  most  important  inte- 
rests of  the  people. 

The  General  Assembly  of  Virginia  will  not  now  enter  into  a  minute 
detail  of  all  the  facts  and  reasonings  which'justify  and  require  the  instruc- 
tions hereto  subjoined.  It  cannot,  however,  forbear  to  remind  you  of 
some  facts  and  observations,  which  it  deems  too  expressive  and  impor- 
tant to  be  passed  over  in  silence.  It  had  indulged  a  hope,  when  there 
was  a  prospect  of  an  accommodation  of  differences  with  the  French  re- 
public, or,  if  even  the  existing  mission  should  not  terminate  in  that  desirable 
event,*  when  all  the  belligerent  nations  of  Europe  are  too  much  occupied 

*  The  mission  referred  to  was  composed  of  Messrs.  Oliver,  Ellsworth,  of  Connecticut, 
then  Chief  Justice  of  the  United  States,  William  R.  Davie,  of  North  Carolina,  and 
William  Vans  IVJurray,  of  Maryland,  then  the  United  States  minister  at  the  Hague. 

As  soon  as  Talleyrand  discovered  the  gross  blunder  he  had  Committed  in  dismissing 
the  American  plenipotentiaries,  in  the  manner  related  in  the  preface  (see  page  xii.), 
and  that  the  people  of  the  United  States  would  heartily  support  their  government,  he 
hastened  to  avert  the  gathering  storm  by  instructing  the  French  secretary  of  legation 
at  the  Hague  to  give  Mr.  Murray,  our  minister  there,  assurances,  at  first  informal,  but 
finally  distinct  and  authoritative,  that  "whatever  plenipotentiary  the  government  of 
the  United  States  might  send  to  France,  to  put  an  end  to  the  existing  differences 


INSTRUCTIONS  TO  SENATORS.  239 

with  European  concerns,  to  meditate  an  invasion  of  the  United  States, 
that  the  people  would  have  been  relieved  from  the  evils  and  expenses  in- 
cident to  a  military  establishment,  such  as  that  authorized  by  the  fifth  Con- 
gress ;  but  it  has  been  with  the  most  painful  emotions,  that  it  has  seen, 
at  the  opening  of  the  present  session  of  Congress,  a  total  disappointment  in 
this  just  and  pleasing  expectation.  The  following  intimation  is  contained 
in  the  speech  of  the  President,  and  approved  in  the  answers  of  the  two 
houses  of  Congress.  "  The  result  of  the  mission  to  France  is  yet  uncertain, 
but  however  it  may  terminate,  a  steady  perseverance  in  a  system  of  national 
defence,  commensurate  with  our  resources  and  the  situation  of  the  United 
States,  is  an  obvious  dictate  of  wisdom."  This  recommendation,  if  carried 
into  practice,  would  materially  lessen  the  advantages  which  would  natu- 
rally result  from  an  accommodation  with  the  French  republic,  the  most 
important  of  which  would  be  a  relief  from  the  evils  incident  to  a  prepara- 
tion for  a  rupture,  and  seems  to  establish  a  position  never  before  officially 
advanced  in  the  United  States — that  war  in  Europe  is  of  itself  a  sufficient 
cause  for  raising  a  standing  army  here,  equal  at  least  to  the  present  mili- 
tary establishment.  The  experience  of  all  ages  has  shown  that  the  respite 
from  wars  amongst  the  European  nations  is  too  short  to  justify  disbanding 
an  existing  army,  and  raising  another  during  the  intervals  of  peace,  as  a 
preparation  for  the  next  rupture ;  and  of  course,  if  European  wars  be  a 
sufficient  cause  for  raising  military  establishments  here,  a  perpetual  stand- 
ing army  would  be  the  certain  consequence  of  the  recommendation.  It 
cannot  have  escaped  your  notice,  that  the  present  war  in  Europe  ha*s  not 
hitherto  been  deemed  a  sufficient  cause  for  increasing  the  military  esta- 
blishment of  the  United  States.  So  far  from  it,  that  during  the  existence 
of  the  war,  the  former  establishment  was  actually  reduced.  It  is  equally 
notorious  that  the  only  motive  avowed  for  augmenting  the  military  force, 
arose  from  the  apprehension  of  an  actual  invasion  from  France ;  and  the 
same  law  which  gave  rise  to  the  army,  contains  a  provision  for  disbanding 
it,  upon  an  accommodation  with  that  republic.  It  cannot  therefore  but 
produce  much  concern,  that  notwithstanding  the  existing  prospect  of  ac- 
commodation, it  should  not  only  be  considered  as  necessary  to  go  on  with 
the  immense  expense  of  such  an  establishment,  but  that  it  should  be 
deemed  expedient  to  persevere  in  a  system  of  defence  commensurate  with 
the  resources  and  situation  of  the  United  States,  even  in  the  event  of  a 
successful  termination  of  the  pacific  mission  and  a  restoration  of  that  state 

between  the  two  countrie^,  would  be  undoubtedly  received  with  the  respect  due  to  the 
representative  of  a  free,  independent,  and  powerful  nation,"— employing,  if  will  be  ob- 
served, the  very  terms  which  Mr.  Adams  had  used  in  his  message  of  21st  June,  1798, 
as  expressive  of  the  only  condition  on  which  he  would  again  send  a  minister  to  France. 
Mr.  Murray,  having  acquainted  his  government  with  this  overture,  the  President,  on 
the  18th  of  February,  179'J,  nominated  him  to  the  Senate  as  minister  plenipotentiary 
to  the  French  republic.  On  the  25th,  however,  recalling  that  nomination,  he  presented 
the  names  of  Messrs.  Ellsworth,  Henry,  and  Murray,  who  were  confirmed.  Mr.  Henry 
having  declined  the  appointment,  it  was  subsequently  conferred  on  Mr.  Davie,  who, 
together  with  Mr.  Ellsworth,  having  joined  Mr.  Murray  in  Paris,  in  March,  1800,  a 
convention  was  concluded,  on  the  last  day  of  the  following  September,  which  adjusted 
the  principal  differences  between  the  two  countries.  (See  2  Am.  St.  Papers,  239,  240, 
and  295;  3  Jeff.  Mem.  421-423.) 


240  INSTRUCTIONS  TO  SENATORS. 

of  things  which  preceded  the  crisis  which  was  supposed  by  Congress  to 
require  so  great  an  augmentation  of  the  military  force.  Although  the 
Constitution  submits  the  right  of  raising  armies  to  the  discretion  of  Con- 
gress, yet,  it  evidently  contemplated  the  rnilitia  as  the  great  bulwark  of 
national  defence,  as  well,  to  use  the  language  of  the  Constitution,  to  repel 
invasions,  as  to  execute  the  laws  ofilie  union  and  suppress  insurrections, 
and  contemplated  the  right  of  raising  armies  for  pressing  and  extraordinary 
emergencies.  That  the  militia,  except  in  such  emergencies,  is  the  only 
safe  and  adequate  defence  of  the  nation,  is  a  political  axiom  hitherto  held 
sacred  in  the  United  States.  This  is  not  only  the  obvious  meaning  of  the 
Constitution,  but  is  still  more  strongly  evidenced  by  the  practical  construc- 
tion thereof  under  the  former  administration,  as  will  appear  by  reviewing 
its  proceedings  for  several  successive  years  after  the  government  was  put 
into  operation.  Shortly  after  that  event,  the  first  President  in  his  speech 
on  the  8th  of  January,  1790,  called  the  attention  of  Congress,  to  the  great 
business  of  providing  for  the  national  defence  in  the  following  words  :  "  A 
free  people  ought  not  only  to  be  armed,  but  disciplined,  to  which  end  an 
uniform  and  well-digested  plan  is  requisite."  Acting  under  the  same  im- 
pression in  his  speech  on  the  25th  of  October,  1791,  he  again  reminded 
Congress  of  the  militia,  as  the  great  depository  of  national  force.  Speaking 
of  the  several  objects  referred  to  the  consideration  of  Congress,  in  referring 
to  the  militia,  he  observes  :  "  The  first  is  certainly  an  object  of  primary 
importance,  whether  viewed  in  reference  to  the  national  security,  or  to  the 
satisfaction  of  the  community,  or  to  the  preservation  of  order ;  in  con- 
nexion with  this,  the  establishment  of  competent  magazines  and  arsenals, 
and  the  fortifications  naturally  present  themselves  to  consideration.  The 
safety  of  the  United  States,  under  divine  protection,  ought  to  rest  on  the 
basis  of  systematic  and  solid  arrangements,  exposed  as  little  as  possible  to 
the  hazard  of  fortuitous  circumstances." 

These  recommendations  being  considered  as  relating  exclusively  to  the 
militia,  gave  rise  to  a  law  more  effectually  to  provide  for  the  national  de- 
fence, by  establishing  an  uniform  militia  throughout  the  United  States. 
The  President  again  recurring  to  the  militia,  as  the  safe  and  adequate 
defence  of  the  nation,  in  his  speech  on  the  third  of  December,  1793,  after 
speaking  of  the  necessity  of  procuring  arms  and  other  military  apparatus, 
emphatically  observes  : — "  Nor  can  such  arrangements,  with  such  objects, 
be  exposed  to  the  censure  or  jealousy  of  the  warmest  friends  of  republican 
government.  They  are  incapable  of  abuse  in  the  hands  of  a  'militia,  who 
ought  to  possess  a  pride  in  being  the  depository  of  tfa  force  of  the  republic, 
and  may.be  trained  to  a  degree  of  energy  equal  to  every  military  exigency 
of  the  United  States.  But  it  is  an  inquiry  which  cannot  be  too  solemnly 
pursued,  whether  the  act  has  organized  them  so  as  to  produce  their  full 
effect"  And  again,  after  the  militia  had  demonstrated  their  efficacy  in 
promptly  marching  to  suppress  an  opposition  to  the  laws  in  Pennsylvania, 
on  the  19th  of  November,  1794,  in  his  speech  the  President  observes  : 
"  The  devising  and  establishing  a  well-regulated  militia,  would  be  a 
genuine  source  of  legislative  honour,  and  a  perfect  title  to  public  gratitude. 
I  therefore  entertain  a  hope,  that  the  present  session  will  not  pass,  without 
carrying  to  its  full  energy  the  power  of  organizing,  arming,  and  disciplin- 


INSTRUCTIONS  TO  SENATORS.  241 

ing  the  militia,  and  thus  providing  in  the  language  of  the  Constitution  for 
calling  them  forth,  to  execute  the  laws  of  the  Union,  suppress  insurrec- 
tions, and  repel  invasions,  as  auxiliary  to  the  state  of  our  defence,  to  which 
Congress  can  never  too  frequently  recur ;  they  will  not  omit  to  inquire 
whether  the  fortifications  which  have  been  already  licensed  by  law,  be 
commensurate  with  our  exigencies."  These  quotations  require  no  illus- 
tration. They  demonstrate  the  principle  contended  for  by  the  General 
Assembly.  Until  the  fifth  Congress  this  principle  appears  to  have  been 
duly  respected. '  It  was  then  materially  varied  by  the  substitution  of  a 
military  establishment,  and  by  volunteer  corps  officered  by  the  President 
and  not  by  the  states,  as  the  Constitution  requires  that  the  militia  should 
be,  at  the  same  time  refusing  to  arm  and  equip  any  portion  of  the  militia 
for -the  purposes  oft defence. 

The  solicitude  of  the  Virginia  Assembly  for  disbanding  the  army  and 
reinstating  the  great  constitutional  principle  of  national  defence,  is  greatly 
increased  by  referring  to  the  enormous  sums  appropriated  for  supporting 
the  army  and  navy.  During  the  last  year,  whilst  money  was  procured  at 
eight  per  centum,  the  appropriations  for  the  support  of  the  army  alone, 
amounted  to  4,200,000  dollars  ;  for  fortifications,  700,000  ;  for  the  navy, 
4,350,000  ;  amounting  in  the  whole  to  9,250,000,  exclusively  of  a  great 
and  unascertained  sum  of  voluntary  subscriptions  for  building  and  equip- 
ping vessels  of  war  for  which  the  subscribers  receive  an  interest  at  six  per 
centum.  Thus  imposing  an  annual  debt,  or  an  annual  tax  upon  the  people 
of  nearly  two  dollars  for  every  individual  throughout  the  United  States, 
to  say  nothing  of  the  moral  and  political  evils  incident  to  a  standing  army 
and  some  of  which  are  already  developing  themselves  in  the  United  States. 
Considering  the  great  distance  of  the  United  States  from  the  powerful 
nations  of  Europe,  the  natural  strength  of  the  country,  the  spirit  of  the 
people,  and  the  fate  of  one  invading  experiment  made  at  a  time  and  under 
circumstances  infinitely  unfavourable  to  the  United  States  compared  with 
their  present  situation,  the  General  Assembly  is  persuaded  that  as  long  as 
the  nations  of  Europe  continue  at  war  with  each  other,  no  formidable  in- 
vasion is  to  be  apprehended  at  all,  nor  a  sudden  and  formidable  invasion 
at  any  time.  Under  this  prospect  of  things  the  General  Assembly  holds  it 
as  the  dictate  of  true  policy  in  the  federal  government  to  husband  the 
public  resources,  to  arrange  and  prepare  the  militia,  and  to  cultivate  har- 
mony by  removing  as  far  as  possible,  causes  of  jealousy  and  disapproba- 
tion. With  these  advantages  it  cannot  be  doubted  that  the  United  States 
would  be  in  a  better  posture  for  facing  any  danger  that  can  be  seriously 
apprehended,  than  can  be  given  them  by  the  present  military  establish- 
ment accompanied  with  the  anticipation  of  resources  and  the  accumula- 
tions of  public  debts  and  taxes  inseparable  therefrom. 

In  reviewing  the  measures  adopted  by  the  fifth  Congress,  the  General 
Assembly  cannot  overlook  the  act  suspending  all  commercial  intercourse 
with  the  French  dominions.*  However  ready  the  General  Assembly  and 

*  This  policy  was  begun  by  act  of  13th  June,  1798,  which  took  effect  from  1st  July 
following,  and  expired  3d  March,  1799.  It  was  renewed  by  act  of  9th  February,  1799, 
which  expired  3d  March,  1800.  And  was  again  renewed  27th  February,  1800,  until 
3d  March,  1801. 

16 


242  INSTRUCTIONS  TO  SENATORS. 

its  constituents  may  be  to  bear  with  cheerfulness  their  full  share  of  all 
necessary  burdens,  and  to  be  among  the  foremost,  in  making  all  necessary 
sacrifices,  they  cannot  be  insensible  to  some  of  the  effects  of  this  measure, 
which  press  with  peculiar  weight  on  them,  at  the  same  time  that  they  must 
be  in  some  degree  felt,  by  every  part  of  the  United  States.  The  article 
of  tobacco,  as  you  well  know,  constitutes  a  principal  staple  in  the  exports 
of  this  state.  For  several  years  past  it  has  been  an  increasing  one. 
France  and  the  markets  supplied,  or  that  could  be  supplied  through  her, 
consume  a  very  great  proportion  of  all  the  tobacco  made  in  the  United 
States.  Great  Britain  is  supposed  to  consume  not  more  than  ten  or  twelve 
thousand  hogsheads.  The  consequence  of  passing  this  prohibitory  act, 
cutting  off  one  part  of  the  continental  market,  in  Europe,  whilst  the  British 
fleet  under  the  pretext  of  blockades  had  cut  off  another,  has  been  to  throw 
almost  the  whole  of  this  great  and  valuable  staple  into*  the  ports  of  Great 
Britain ;  from  which,  as  a  belligerent  country,  re-exportation  to  other 
markets,  must  be  \nade  with  great  difficulty,  risk,  and  charges,  whilst  the 
monopoly  thus  thrown  into  a  single  market  has  had  the  natural  effect  of 
reducing  the  price  of  the  article  far  below  its  usual  standard,  at  the  very 
time  when,  within  the  prohibited  markets,  it  would  have  sold  at  a  rate  still 
more  above  the  usual  prices.  At  the  time  of  passing  the  law,  the  average 
price  of  tobacco  in  Virginia  was  about  ten  dollars — at  present  the  price  is 
not  more  than  about  three  dollars  and  thirty-three  cents,  and  although 
other  circumstances  may  possibly  in  some  degree  have  contributed  to 
produce  this  immense  difference,  yet  it  cannot  be  doubted  that  the  act  in 
question  has  been  the  principal  cause.  From  this  state  of  things  it  neces- 
sarily happens,  that  the  merchants  who  were  engaged  in  this  branch  of 
trade  have  been  most  extensively  injured ;  the  planter  receives  not  more 
than  a  third  of  the  value  of  his  labour  bestowed  on  the  article  of  tobacco; 
the  ability  to  pay  the  requisite  taxes,  is  proportionably  diminished,  and  the 
revenue  from  imports  likely  to  be  reduced,  by  the  reduction  of  the  value 
of  the  exports.  On  this  consideration  we  think  it  proper  to  instruct  you, 
to  solicit  a  revision  of  the  act  aforesaid,  which  we  cannot,  from  any  infor- 
mation known  to  the  public,  perceive  to  be  in  any  manner  conducive  in 
its  operation  to  the  national  interest.  Nor  do  we  perceive,  that  any  in- 
convenience can  result  from  such  a  measure,  to  the  existing  posture  of 
things  between  the  United  States  and  the  French  republic.  If  it  should 
have  any  influence  on  the  negotiations  depending,  it  will  probably  be  of  a 
conciliatory,  rather  than  of  a  disadvantageous  nature.  And  should  the 
negotiations  not  issue  in  the  desired  accommodation,  this  branch  of  the 
arrangements,  that  may'then  become  proper,  will  be  subject  to  the  same 
discretion  which  will  decide  on  every  other. 

With  respect  to  the  navy,  it  may  be  proper  to  remind  you  that  what- 
ever may  be  the  proposed  object  of  its  establishment,  or  whatever  may  be 
the  prospect  of  temporary  advantages  resulting  therefrom,  it  is  demon- 
strated by  the  experience  of  all  nations,  who  have  ventured  far  into  naval 
policy,  that  such  prospect  is  ultimately  delusive;  and  that  a  navy  has  ever 
in  practice  been  known  more  as  an  instrument  of  power,  a  source  of  ex- 
pense, and  ap  occasion  of  collisions  and  wars  with  other  nations,  than  as 
an  instrument  of  defence,  of  economy,  or  of  protection  to  commerce. 


INSTRUCTIONS  TO  SENATORS.  243 

Nor  is  there  any  nation,  in  the  judgment  of  the  General  Assembly,  to 
whose  circumstances  this  remark  is  more  applicable  than  to  the  United 
States. 

The  General  Assembly  of  Virginia  would  consider  itself  unfaithful  to 
the  trusts  reposed  in  it,  were  it  to  remain  silent,  whilst  a  doctrine 
has  been  publicly  advanced,  novel  in  its  principle,  and  tremendous  in  its 
consequences :  That  the  common  law  of  England  is  in  force  under  the 
government  of  the  United  States !  It  is  not  at  this  time  proposed  to 
expose  at  large  the  monstrous  pretensions  resulting  from  the  adoption  of 
this  principle.*  It  ought  never,  however,  to  be  forgotten,  and  can  never 
be  too  often  repeated,  that  it  opens  a  new  tribunal  for  the  trial  of  crimes 
never  contemplated  by  the  federal  compact.  It  opens  a  new  code  of  san- 
guinary criminal  law,  both  obsolete  and  unknown,  and  either  wholly  re- 
jected or  essentially  modified  in  almost  all  its  parts  by  state  institutions. 
It  arrests  or  supersedes  state  jurisdiction,  and  innovates  upon  state  laws. 
It  subjects  the  citizen  to  punishment  according  to  the  judiciary  will,  when 
he  is  left  in  ignorance  of  what  this  law  enjoins  as  a  duty,  or  prohibits  as 
a  crime.  It  assumes  a  range  of  jurisdiction  for  the  federal  courts,  which 
defies  limitation  or  definition.  In  short,  it  is  believed  that  the  advocates 
for  the  principle  would  themselves  be  lost  in  an  attempt  to  apply  it  to  the 
existing  institutions  of  federal  and  state  courts,  by  separating  with  pre- 
cision their  judiciary  rights,  and  thus  preventing  the  constant  and  mis- 
chievous interference  of  rival  jurisdiction. 

With  respect  to  the  alien  and  sedition-laws,  it  is  at  present  only  deemed 
necessary  to  refer  you  to  the  various  discussions  upon  those  subjects  which, 
in  the  opinion  of  the  General  Assembly  of  Virginia,  clearly  demonstrate 
the  unconstitutionally  of  their  principles ;  and  experience  has  also  suffi- 
ciently shown,  the  mischiefs  of  their  operation. 

The  General  Assembly  of  Virginia,  confiding  in  your  intelligence  and 
zeal,  trusts  that  these  principles  will  be,  on  all  proper  occasions,  illustrated 
and  supported  by  you,  with  that  candour,  moderation  and  firmness,  without 
which  the  friends  of  liberty  and  truth,  however  sincere,  cannot  render 
essential  service  to  the  cause  in  which  they  are  engaged. 

Deeply  impressed  with  these  opinions,  the  General  Assembly  of  Virginia 
instructs  the  senators  and  requests  the  representatives  from  this  state  in 
Congress,  to  use  their  best  efforts — 

1.  To  procure  a  reduction  of  the  army,  within  the  narrowest  limits 
compatible  with  the  protection  of  the  forts  and  the  preservation  of  the 
arsenals  maintained  by  the  United  States ;  unless  such  a  measure  shall  be 
forbidden  by  information  not  known  to  the  public. 

2.  To  prevent  any  augmentation  of  the    navy,  and  to  promote  any 
proposition  for  reducing  it,  as  circumstances  will  permit,  within  the  nar- 
rowest limits  compatible  with  the  protection  of  the  sea-coasts,  ports,  and 
harbours  of  the  United  States,  and  of  consequence  a  proportionate  reduc- 
tion of  the  taxes. 

3.  To  oppose  the  passing  of  any  law  founded  on,  or  recognising*  the 

*  The  consequences  of  this  doctrine  are  exposed  in  the  Virginia  Report.  See  the 
argument  there.  Ante,  p.  216  et  seq. 


244  VOTES  ON  INSTRUCTIONS  TO  SENATORS. 

principle  lately  advanced,  "  that  the  common  law  of  England  is  in  force 
under  the  government  of  the  United  States ;"  excepting  from  such  opposi- 
tion such  particular  parts  of  the  common  law  as  may  have  a  sanction 
from  the  Constitution,  so  far  as  they  are  necessarily  comprehended  in  the 
technical  phrases  which  express  the  powers  delegated  to  the  government ; — 
and  excepting  also  such  other  parts  thereof  as  may  be  adopted  by  Con- 
gress, as  necessary  and  proper  for  carrying  into  execution  the  powers 
expressly  delegated. 

4.  To  procure  a  repeal  of  the  acts  of  Congress  commonly  called  the  alien 
and  sedition-acts. 


IN  THE  HOUSE  OF  DELEGATES. 

VOTES  ON  INSTRUCTIONS  TO  SENATORS. 
Saturday,  January  11,  1800. 

The  House,  according  to  order,  proceeded  to  consider  the  "  instructions 
from  the  General  Assembly  of  Virginia,  to  STEPHENS  THOMPSON  MASON 
and  WILSON  GARY  NICHOLAS,  senators  from  the  state  of  Virginia,  in  the 
Senate  of  the  United  States ;"  and  the  first  article  of  the  said  instructions 
being  read,  a  motion  was  made  to  amend  the  same  by  adding  thereto, 
"  unless  such  a  measure  shall  be  forbidden  by  information  not  known  to 
the  public,"  and  the  same  being  read,  a  motion  was  made  to  amend  the 
amendment,  by  substituting  in  lieu  thereof,  "  as  soon  as  an  accommoda- 
tion of  the  existing  differences  with  the  French  republic  may  render  such 
a  reduction  safe  and  expedient."  And  the  question  being  put  thereupon, 

It  passed  in  the  negative. 

On  the  motion  of  Mr.  Richard  B.  Lee,  seconded  by  Mr.  George  K. 
Taylor, 

Ordered,  That  the  names  of  the  ayes  and  noes  on  the  foregoing  ques- 
tion be  inserted  in  the  journal. 

The  names  of  those  who  voted  in  the  affirmative  are — Messrs.  Bailey, 
Doake,  Anderson,  Blackburn,  Hancock,  Tate,  A.  White,  Breckenridge, 
Powell,  R.  B.  Lee,  Clarkson,  Edmunds,  MagUl,  Eskridge,  J.  Mathews, 
Cavendish,  B.  Robinson,  Fisher,  Simon,  T.  Lewis,  Ruffner,  Ashton,  Bur- 
well,  Ball,  J.  Lewis,  Noland,  Cowan,  Nelson,  J.  Evans,  Jun.,  Sumner,  J. 
Taylor,  Darby,  Satchell,  Biggs,  Geo.  K.  Taylor,  Cureton,  Lawson,  J. 
Robinson,  Blow,  W.  Bailey,  Garner,  Turner,  Crockett,  Griffin,  Copland, 
R.  B.  Taylor.— 46. 

And  the  names  of  those  who  voted  in  the  negative  are — Messrs.  Wise, 
Woods,  Giles,  Chaffin,  David  S.  Garland,  Hare,  Vance,  Calwell,  Young, 
Otey,  Fletcher,  Charles  Yancey,  West,  J.  Taylor,  Buckner,  Reid,  Tyler, 
Cheatham,  T.  A.  Taylor,  J.  Roberts,  M.  Green,  W.  Daniel,  Dean,  Pegram, 


VOTES  ON  INSTRUCTIONS-TO  SENATORS.  245 

Goodwyn,  Booker,  Westwood,  Daingerfield,  Garnett,  Hayden,  Payne, 
Greer,  Cooke,  Hall,  C.  Garland,  Pteasants,  William  Lee,  Gaines,  John 
B.  Scott,  Calmes,  Higgins,  Selden,  Price,  (of  Henrico,)  Starke,  T.  White, 
Jackson,  Prunty,  Martin,  Redd,  Driver,  James  Johnston,  Tazewell,  Light- 
foot,  Wallace,  Pollard,  Cocke,  Callis,  Yancey,  Francis  Eppes,  Hill,  Roe- 
buck, Billups,  Blakey,  Robert  B.  Daniel,  Craig,  Howe,  Riddick,  Watkins, 
Claughton,  Ball,  Freeman  Eppes,  Grief  Green,  Madison,  Barbour,  M'Ro- 
berts,  Wooding,  Moseley,  Woodson,  Peter  Johnston,  Charles  Scott,  Pope, 
Thomas  Mason,  M'Coy,  Hull,  Rentfro,  Haddan,  Barnes,  M'Carty,  Bowyer, 
Moore,  B.Harrison,  Huston,  M'Farlane,  Dulany,  Gatewood,  Mercer,  Stan- 
nard,  Fox,  Seward,  Sebrell,  Smith,  Burnham,  Meek,  Dysart,  Evans,  Shield, 
and  Waller.— 107. 

The  question  being  then  put  on  the  amendment  first  proposed, 
It  passed  in*  the  affirmative. 

And  then  the  question  being  put  on  the  first  article  of  the  instructions, 
as  amended, 

It  passed  in  the  affirmative. 

On  the  motion  of  Mr.  Jackson,  seconded  by  Mr.  Geo.  K.  Taylor, 
Ordered,  That  the  names  of  the  ayes  and  noes  on  the  foregoing  ques- 
tion be  inserted  in  the  journal. 

The  names  of  those  who  voted  in  the  affirmative  are — Messrs.  Woods, 
Giles,  Chaffin,  David  S.  Garland,  Hare,  Vance,  Calwell,  Young,  Han- 
cock, Otey,  Fletcher,  C.  Yancey,  Boiling,  West,  James  Taylor,  Buckner, 
Reid,  Price,  (of  Charlotte,)  Tyler,  Cheatham,  T.  A.  Taylor,  Roberts,  M. 
Green,  W.  Daniel,  Deane,  Pegram,  Goodwyn,  Booker,  Westwood,  Dain- 
gerfield, Garnett,  Hayden,  Payne,  Greer,  Cooke,  Hall,  C.  Garland,  Plea- 
sants,  W.  Lee,  Gaines,  J.  B.  Scott,  Higgins,  Selden,  Price,  (of  Henrico,) 
Starke,  T.  White,  Prunty,  Fisher,  Martin,  Redd,  Driver,  J.  Johnston,  Taze- 
well, Jackson,  Lightfoot,  Pollard,  Cocke,  Callis,  R.  Yancey,  Francis  Eppes, 
Hill,  Roebuck,  Billups,  Litchfield,  Blakey,  R.  B.  Daniel,  Craig,  Howe,  Rid- 
dick, Watkins,  Claughton,  Ball,  Freeman  Eppes,  G.  Green,  Madison,  Bar- 
bour, M'Roberts,  Wooding,  Moseley,  Woodson,  Peter  Johnston,  C.  Scott, 
Pope,  T.  Mason,  M'Coy,  Hull,  Rentfro,  Haddan,  Barnes,  M'Carty,  Bowyer, 
Moore,  B.  Harrison,  Huston,  M'Farlane,  Dulaney,  Gatewood,  Mercer, 
Stannard,  Fox,  Seward,  Sebrell,  Burnham,  Meek,  Dysart,  John  Evans, 
Shield,  and  Waller.— 108. 

And  the  names  of  those  who  voted  in  the  negative  are — Messrs.  Wise, 
T.  Bailey,  Doake,  Anderson,  Blackburn,  Tate,  A.  White,  Breckenridge, 
Miller,  J.  F.  Powell,  R.  B.  Lee,  Clarkson,  Magill,  Eskridge,  Cavendish, 
Thomas  Lewis,  Ruffner,  Wallace,  Ashton,  Burwell,  Joseph  Lewis,  Noland, 
Cowan,  Nelson,  Evans,  Jun.,  T.  Wilson,  Sumner,  James  Taylor,  Darby, 
Satchell,  Biggs,  G.  K.  Taylor,  Cureton,  Lawson,  J.  Robinson,  Blow,  W. 
Bailey,  Smith,  Garner,  Turner,  Griffin,  Copland,  R.  B.  Taylor.— 42. 

The  second  article  of  the  instructions  being  then  read,  a  motion  was 
made  to  amend  the  same,  by  striking  out  the  whole  of  the  said  article 
from  the  third  word,  and  substituting  in  lieu  of  the  part  so  struck  out, 
"  unnecessary  augmentation  of  the  navy,  and  to  promote  any  proposition 
for  confining  it  within  the  narrowest  limits  compatible  with  the  protection 


246  VOTES  ON  INSTRUCTIONS  TO  SENATORS. 

of  the  sea-coasts,  ports,  and  harbours,  and  of  the  commerce  of  the  United 
States ;"  and  the  question  being  put  thereon, 
It  passed  in  the  negative. 

On  the  motion  of  Mr.  George  K.  Taylor,  seconded  by  Mr.  Cureton, 

Ordered,  That  the  names  of  the  ayes  and  noes  on  the  foregoing  ques- 
tion be  inserted  in  the  journal. 

The  names  of  those  who  voted*  in  the  affirmative  are — Messrs.  Wise, 
T.  Bailey,  Doake,  Anderson,  Blackburn,  Hancock,  Otey,  Alexander  White, 
Tate,  Breckenridge,  Miller,  West,  J.  F.  Powell,  Booker,  Westwood,  Rich- 
ard B.  Lee,  Clarkson,  Edmunds,  Magill,  Eskridge,  John  Matthews,  Caven- 
dish, B.  Robinson,  Fisher,  Simon,  T.  Lewis,  Ruffner,  Wallace,  Ashton, 
Pollard,  Burwell,  Ball,  Joseph  Lewis,  Jun.,  Noland,  Cowan,  Nelson,  John 
Evans,  Jun.,  T.  Wilson,  Sumner,  James  Taylor,  Darby,  Sttchell,  Biggs, 
George  K.  Taylor,  Cureton,  Lawson,  James  Robinson,  Blow,  William 
Bailey,  Garner,  Turner,  Griffin,  Copland,  and  Robert  B.  Taylor. — 54. 

And  the  names  of  those  who  voted  in  the  negative  are — Messrs.  Woods, 
Giles,  Chaffin,  D.  S.  Garland,  Hare,  Vance,  Calwell,  Young,  Fletcher, 
C.  Yancey,  Boiling,  John  Taylor,  Buckner,  Price,  (of  Charlotte,)  Tyler, 
Cheatham,  T.  A.  Taylor,  Roberts,  Green,  W.  Daniel,  Deane,  Pegram, 
Goodwyn,  Daingerfield,  Garnett,  Hayden,  Payne,  Greer,  Hall,  C.  Gar- 
land, Pleasants,  W.  Lee,  Gaines,  J.  B.  Scott,  Howson,  Calmes,  Higgins, 
Selden,  Price,  (of  Henrico,)  Starke,  T.  White,  Jackson,  Prunty,  Martin, 
Redd,  Driver,  J.  Johnston,  Tazewell,  Lightfoot,  Cock^,  Callis,  R.  Yancey, 
F.  Eppes,  Hill,  Roebuck,  Billups,  Litchfield,  Blakey,  R.  B.  Daniel,  Craig, 
Howe,  Riddick,  Watkins,  Claughton,  William  Ball,  Freeman  Eppes,  G. 
Green,  Madison,  Barbour,  M'Roberts,  Woodings,  Moseley,  Woodson,  Peter 
Johnston,  C.  Scott,  Pope,  T.  Mason,  M'Coy,  Hull,  Rentfro,  Haddan,  Barnes, 
M'Carty,  Bowyer,  Moore,  B.  Harrison,  Huston,  Cockrell,  M'Farlane, 
Dulaney,  Gatewood,  Mercer,  Stannard,  Fox,  Seward,  Sebrell,  Smith,  Burn- 
ham,  Meek,  Dysart,  Evans,  Shield,  and  Waller. — 103. 

A  motion  was  then  made  to  amend  the  said  article,  by  inserting  after 
the  word  "  it,"  in  the  first  line,  "  as  circumstances  will  permit." 

It  passed  in  the  affirmative. 

The  third  article  of  the  instructions  being  then  read,  a  motion  was  made 
to  amend  it  by  the  following  addition  :  "excepting  from  such  opposition 
such  particular  parts  of  the  common  law  as  may  have  a  sanction  from  the 
Constitution,  eo  far  as  they  are  necessarily  comprehended  in  the  technical 
phrases,  which  express  the  powers  delegated  to  the  government :  and  ex- 
cepting also,  such  other  parts  thereof  as  may  be  adopted  as  necessary  and 
proper  for  carrying  into  execution  the  powers  expressly  delegated."  And 
the  question  being  put  thereupon, 

It  passed  in  the  affirmative. 

On  the  motion  of  Mi*.  Cureton,  seconded  by  Mr.  Breckenridge, 
Ordered,  That  the  names  of  the  ayes  and  noes  on  the  foregoing  ques- 
tion be  inserted  in  the  journal. 

The  names  of  those  who  voted  in  the  affirmative  are — Messrs.  Wise, 


VOTES  ON  INSTRUCTIONS  TO  SENATORS.  247 

T.  Bailey,  Woods,  Giles,  Chaffin,  D.  S.  Garland,  Hare,  Doake,  Anderson, 
Blackburn,  Vance,  Calwell,  Young,  Hancock,  Otey,  Tate,  A.  White, 
Breckenridge,  Miller,  Fletcher,  C.  Yaricey,  Boiling,  West,  Powell,  John 
Taylor,  Buckner,  Reid,  Price,  (of  Charlotte,)  Tyler,  Cheatham,  T.  A. 
Taylor,  Roberts,  M.  Green,  W.  Daniel,' Deane,  Pegram,  Goodwyn,  Booker, 
Westwood,  Daingerfield,  Garnett,  R.  B.  Lee,  Clarkson,  Edmonds,  J.  Hay- 
den,  Payne,  Magill,  Eskridge.  Greer,  Cooke,  Hall,  C.  Garland,  Pleasants, 
W.  Lee,  Gaines,  Cavendish,  B.  Robinson,  J.  B.  Scott,  Howson,  Calmes, 
Higgins,  Selden,  Price,  (of  Henrico,)  Starke,  T.  White,  Prunty,  Fisher, 
Simon,  Martin,  Redd,  Driver,  J.  Johnston,  Tazewell,Lightfoot,  T.  Lewis, 
Ruffner,  Wallace,  Ashton,  Pollard,  Burwell,  Ball,  J.  Lewis,  Noland,  Callis, 
R.  Yancey,  Francis  Eppes,  Cowan,  Nelson,  Hill,  Billups,LitchfieId,  Blakey, 
R.  Daniel,  Evans,  Jr.,  T.  Wilson,  Craig,  Howe,  Riddick,  Sumner,  Wat- 
kins,  James  Taylor,  Darby,  Satchell.  Claughton,  Ball,  Freeman,  Eppes, 
G.  Green,  Biggs,  Madison,  M'Roberts,  Wooding,  Moseley,  Woodson,  C. 
Scott,  Pope,  G.  K.  Taylor,  Cureton,  T.  Mason,  Lawson,  James  Robinson, 
M'Koy,  Hull,  Rentfro,  Barnes,  M'Carty,  Bowyer,  Moore,  B.  Harrison, 
Huston,  M'Farlane,  Dulaney,  Gatewood,  Blow,  William  Bailey,  Mercer, 
Stannard,  Fox,  Seward,  Sebrell,  Smith,  Burn'ham,  Garner,  Turner,  Meek, 
Dysart,  Shield,  Griffin,  Waller,  and  R.  B.  Taylor. — 149. 

And  the  names  of  those  who  voted  in  the  negative  are 

And  the  question  being  then  put  on  the  article  of  instruction  as 
amended, 

It  passed  in  the  affirmative. 

The  fourth  article  of  the  instructions  was  then  read,  and  the  question 
being  put  upon  the  passage  thereof, 

It  passed  in  the  affirmative. 

That  part  of  the  instructions  which  relates  to  the  act  of  Congress  con- 
cerning the  suspension  of  intercourse  with  France  and  her  dependencies 
was  then  read,  and  the  question  being  put  on  the  passage  thereof, 

It  passed  in  the  affirmative. 

The  question  being  then  put,  that  the  instructions,  as  amended,  do  pass, 

They  passed  in  the  affirmative. 

On  the  motion  of  Mr.  Jackson,  seconded  by  Mr.  Bailey, 
Ordered,  That  the  names  of  the  ayes  and  noes  on  the  foregoing  ques- 
tion be  inserted  in  the  journal. 

The  names  of  those  who  voted  in  the  affirmative  are — Messrs.  Woods, 
Giles,  Chaffin,  David  S.  Garland,  Hare,  Vance,  Calwell,  Young,  Fletcher, 
Charles  Yancey,  J.  Taylor,  Buckner,  Reid,  Price,  (of  Charlotte,)  Tyler, 
Cheatham,  Thomas  A.  Taylor,  Roberts,  Green,  Wm.  Daniel,  Deane, 
Pegram,  Goodwyn,  Booker,  Westwood,  Daingerfield,  Garnett,  Hayden, 
Payne,  Greer,  Cooke,  Hall,  Christopher  Garland,  Pleasants,  William  Lee, 
Gaines,  J.  B.  Scott,  Howson,  Calmes,  Higgins,  Selden,  Price,  (of  Henrico,) 
Starke,  Thos.  White,  Jackson,  Prunty,  Martin,  Redd,  Driver,  James 
Johnston,  Tazewell,  Lightfoot,  Cocke,  Callis,  R.  Yancey,  Francis  Eppes, 
Hill,  Roebuck,  Billups,  Litchfield,  Blakey,  Robert  B.  Daniel,  Craig,  Howe, 
Riddick,  Watkins,  Claughton,  J.  Ball,  F.  Eppes,  G.  Green,  Madison,  Bar- 
bour,  M'Roberts,  Wooding,  Moseley,  Woodson,  Charles  Scott, Pope,  M'Coy, 


248  VOTES  ON  INSTRUCTIONS  TO  SENATORS. 

Hull,  Rentfro,  Haddan,  Barnes,  M'Carty,  Bowyer,  Moore,  B.  Harrison, 
Huston,  Cockrell,  M'Farlane,  Dulaney,  Gatewood,  Mercer,  Stannard,  Fox, 
Seward,  Sebrell,  Burnham,  Meek, 'Dysart,  Shield,  and  Waller.— 102. 

The  names  of  those  who  voted  in  the  negative  are — Messrs.  Wise, 
Thomas  Bailey,  Doake,  Anderson,  Blackburn,  Hancock,  Otey,  Tate,  A. 
White,  Breckenridge,  Miller,  West,  Powell,  R.  B.  Lee,  Clarkson,  Ed- 
monds,  Magill,  Eskridge,  Cavendish,  B.  Robinson,  Fisher,  Simon,  T. 
Lewis,  Ruffner,  Wallace,  Ashton,  N.  Burwell,  J.  Ball,  J.  Lewis,  Jun., 
Noland,  Cowan,  Evans,  T.  Wilson,  Sumner,  James  Taylor,  Darby, 
Satchell,  Biggs,  G.  K.  Taylor,  Cureton,  Lawson,  J.  Robinson,  Blow, 
William  Bailey,  Garner,  Turner,  Griffin,  Copland,  and  R.  B.  Taylor.— 49. 


VII. 
APPENDIX. 


MR.  MADISON  TO  MR.  EVERETT. 

Montpelier,  August,  1830. 

DEAR  SIR, — 

I  have  duly  received  your  letter,  in  which  you  refer  to  the  "  nullifying 
doctrine,"  advocated  as  a  constitutional  right,  by  some  of  our  distinguished 
fellow-citizens,  and  to  the  proceedings  of  the  Virginia  Legislature  in  '98  and 
'99,  as  appealed  to  in  behalf  of  that  doctrine;  and  you  express  a  wish  for 
my  ideas  on  those  subjects.  « 

I  am  aware  of  the  delicacy  of  the  task  in  some  respects,  and  the  diffi- 
culty in  every  respect,  of  doing  full  justice  to  it.  But  having  in  more  than 
one  instance  complied  with  a  like  request  from  other  friendly  quarters,  I 
do  not  decline  a  sketch  of  the  views  which  I  have  been  led  to  take  of  the 
doctrine  in  question,  as  well  as  some  others  connected  with  them ;  and 
of  the  grounds  from  which  it  appears,  that  the  proceedings  of  Virginia 
have  been  misconceived  by  those  who  have  appealed  to  them.  In  order 
to  understand  the  true  character  of  the  Constitution  of  the  United  States, 
the  error,  not  uncommon,  must  be  avoided,  of  viewing  it  through  the 
medium,  either  of  a  consolidated  government,  or  of  a  confederated  govern- 
ment, whilst  it  is  neither  the  one  nor  the  other,  but  a  mixture  of  both. 
And  having,  in  no  model,  the  similitudes  and  analogies  applicable  to  other 
systems  of  government,  it  must,  more  than  any  other,  be  its  own  inter- 
preter, according  to  its  text  and  the  facts  of  the  case. 

From  these  it  will  be  seen,  that  the  characteristic  peculiarities  of  the 
Constitution  are,  1,  the  mode  of  its  formation;  2,  the  division  of  the 
supreme  powers  of  government  between  the  states  in  their  united  capacity, 
and  the  states  in  their  individual  capacities. 

1.  It  was  formed,  not  by  the  governments  of  the  component  states,  as 
the  federal  government  for  which  it  was  substituted  was  formed.  Nor 
was  it  formed  by  a  majority  of  the  people  of  the  United  States,  as  a  single 
community,  in  the  manner  of  a  consolidated  government. 


250  APPENDIX. MADISON  TO  EVERETT. 

It  was  formed  by  the  states,  that  is,  by  the  people  in  each  of  the  states, 
acting  in  their  highest  sovereign  capacity ;  and  formed  consequently  by 
the  same  authority  which  formed  the  state  constitutions. 

Being  thus  derived  from  the  same  source  as  the  constitutions  of  the 
states,  it  has,  within  each  state,  the  same  authority  as  the  constitution  of 
the  state,  and  is  as  much  a  constitution  in  the  strict  sense  of  the  term 
within  its  prescribed  sphere,  as  the  constitutions  of  the  states  are  within 
their  respective  spheres  ;  but  with  this  obvious  and  essential  difference, 
that  being  a  compact  among  the  states  in  their  highest  sovereign  capacity, 
and  constituting  the  people  thereof  one  people  for  certain  purposes,  it  can- 
not be  altered  or  annulled  at  the  will  of  the  states  individually,  as  the  con- 
stitution of  a  state  may  be  at  its  individual  will. 

2.  And  that  it  divides  the  supreme  powers  of  government,  between  the 
government  of  the  United  States  and  the  governments  of  the  individual 
states,  is  stamped  on  the  face  of  the  instrument ;  the  powers  of  war  and 
of  taxation,  of  commerce  and  of  treaties,  and  other  enumerated  powers 
vested  in  the  government  of  the  United  States,  being  of  as  high  and 
sovereign  a  character  as  any  of  the  powers  reserved  to  the  state  govern- 
ments. 

Nor  is  the  government  of  the  United  States,  created  by  the  Constitution, 
less  a  government  in  the  strict  sense  of  the  term,  within  the  sphere  of  its 
powers,  than  the  governments  created  by  the  constitutions  of  the  states 
are,  within  their  several  spheres.     It  is  like  them  organized  into  legisja- 
tive,  executive,  and  judiciary  departments.    It  operates,  like  them,  directly 
«t»  on  persons  and  things.     And  like  them,  it  has  at  command  a  physical  ? 
v  force  for  executing  the  powers  committed  to  it.    The  concurrent  operation,**, 
in  certain  cases,  is  one  of  the  features  marjdng  the  peculiarity  of  the 
system. 

Between  these  different  constitutional  governments,  the  one  operating  in 
all  the  states,  the  others  operating  separately  in  each,  with  the  aggregate 
powers  of  government  divided  between  them,  it  could  not  escape  attention, 
that  controversies  would  arise  concerning  the  boundaries  of  jurisdiction, 
and  that  some  provision  ought  to  be  made  for  such  occurrences.  A  poli- 
tical system  that  does  not  provide  for  a  peaceable  and  authoritative  termi- 
nation of  occurring  controversies,  would  not  be  more  than  the  shadow  of 
a  government;  the  object  and  end  of  a  real  government  being,  the  substi- 
tution of  law  and  order,  for  uncertainty,  confusion,  and  violence. 
yC  That  to  have  left  a  final  decision,  in  such  cases,  to  each  of  the  states,  v 
T.then  thirteen,  and  already  twenty-four,  could  not  fail  to  make  the  Consti- 
'  lution  and  laws  of  the  United  States  different  in  different  states,  was  obvious, 
and  not  less  obvious  that  this  diversity  of  independent  decisions,  must  alto- 
gether distract  the  government  of  the  Union,  and  speedily  put  an  end  to  the 
Union  itself.  A  uniform  authority  of  the  laws,  is  in  itself  a  vital  principle. 
Some  of  the  mostimportant  laws  could  not  be  partially  executed.  They  must 
be  executed  in  all  the  states,  or  they  could  be  duly  executed  in  none.  An 
impost,  or  an  excise,  for  example,  if  not  in  force  in  some  states,  would  be 
defeated  in  others.  It  is  well  known  that  this  was  among  the  lessons  of 
experience,  which  had  a  primary  influence  in  bringing  about  the  existing 
Constitution.  A  loss  of  its  general  authority  would  moreover  revive  the 


APPENDIX. MADISON  TO  EVERETT.  251 

exasperating  questions  between  the  states  holding  ports  for  foreign  com- 
merce, and  the  adjoining  states  without  them  ;  to  which  are  now  added 
all  the  inland  states,  necessarily  carrying  on  their  foreign  commerce 
through  other  states. 

"X  'To  have  made  the  decisions  under  the  authority  of  the  individual  states, 
co-ordinate,  in  all  cases,  with  decisions  under  the  authority  of  the  United 
States,  would  unavoidably  produce  collisions  incompatible  with  the  peace 
of  society,  and  with  that  regular  and  efficient  administration,  which  is  of 
the  essence  of  free  governments.  Scenes  could  not  be  avoided,  in  which 
a  ministerial  officer  of  the  United  States,  and  the  correspondent  officer  of 
an  individual  state,  would  have  rencounters  in  executing  conflicting  de- 
crees ;  the  result  of  which  would  depend  on  the  comparative  force  of  the 
local  posses  attending  them  ;  and  that,  a  casualty  depending  on  the  politi- 
cal opinions  and  party  feelings  in  different  states. 

To  have  referred  every  clashing  decision,  under  the  two  authorities, 
for  a  final  decision,  to' the  states  as  parties  to  the  Constitution,  would  be 
attended  with  delays,  with  inconveniences  and  with  expenses,  amounting 
to  a  prohibition  of  the  expedient;  not  to  mention  its  tendency  to  impair 
the  salutary  veneration  for  a  system  requiring  such  frequent  interpositions, 
nor  the  delicate  questions  which  might  present  themselves  as  to  the  form 
of  stating  the  appeal,  and  as  to  the  quorum  for  deciding  it. 

/  To  have  trusted  to  negotiation  for  adjusting  disputes  between  the  go- 
vernment of  the  United  States  and  the  state  governments,  as  between  in- 
dependent and  separate  sovereignties,  would  have  lost  sight  altogether  of 
a  Constitution  and  government  for  the  Union,  and  opened  a  direct  road, 

Cfrom  a  failure  of  that  resort,  to  the  ultima  ratio  between  nations  wholly 
independent  of  and  alien  to  each  other.  If  the  idea  had  its  origin  in  the 
process  of  adjustment,  between  separate  branches  of  the  same  government, 
the  analogy  entirely  fails.  In  the  case  of  disputes  between  independent 
parts  of  the  same  government,  neither  part  being  able  to  consummate  its 
will,  nor  the  government  to  proceed  without  a  concurrence  of  the  parts, 
necessity  brings  about  an  accommodation.  In  disputes  between  a  state  go- 
vernment and  the  government  of  the  United  States,  the  case  is  practically 
as  well  as  theoretically  different ;  each  party  possessing  all  the  departments 
of  an  organized  government,  legislative,  executive,  and  judiciary,  and 
having  each  a  physical  force  to  support  its  pretensions.  Although  the 
issue  of  negotiation  might  sometimes  avoid  this  extremity,  how  often  would 
it  happen  among  so  many  states,  that  an  unaccommodating  spirit  in  some 
would  render  that  resource  unavailing?  A  contrary  supposition  would 
not  accord  with  a  knowledge  of  human  nature,  or  the  evidence  of  our 
own  political  history. 

The  Constitution,  not  relying  on  any  of  the  preceding  modifications  for 
its  safe  and  successful  operation,  has  expressly  declared,  on  the  one  hand, 
1,  "that  the  Constitution,  and  the  laws  made  in  pursuance  thereof,  and 
all  treaties  made  under  the  authority  of  the  United  States,  shall  be  the 
supreme  law  of  the  land ;  2,  that  the  judges  of  every  state  shall  be 
bound  thereby,  anything  in  the  Constitution  and  laws  of  any  stafe  to  the 
contrary  notwithstanding ;  3,  that  the  judicial  power  of  the  United 
States  shall  extend  to  all  cases  in  law  and  equity  arising  under  the  Con- 


252  APPENDIX. MADISON  TO  EVERETT. 

stitution,  the  laws  of  the  United  States,  and  treaties  made  under  their 
authority,"  &c. 

On  the  other  hand,  as  a  security  of  the  rights  and  powers  of  the  states, 
in  their  individual  capacities,  against  an  undue  preponderance  of  the 
powers  granted  to  the  government  over  them  in  their  united  capacity,  the 
Constitution  has  relied  on,  1,  the  responsiblity  of  the  senators  and  repre- 
sentatives in  the  Legislature  of  the  United  States  to  the  legislatures  and 
people  of  the  states ;  2,  the  responsibility  of  the  President  to  the  people 
of  the  United  States ;  and  3,  the  liability  of  the  executive  and  judicial 
functionaries  of  the  United  States  to  impeachment  by  the  representatives 
of  the  people  of  the  states  in  one  branch  of  the  Legislature  of  the  United 
States,  and  trial  by  the  representatives  of  the  states,  in  the  other  branch ; 
the  state  functionaries,  legislative,  executive,  and  judicial,  being,  at  the 
same  time,  in  their  appointment  and  responsibility,  altogether  independent 
of  the  agency  or  authority  of  the  United  States. 

How  far  this  structure  of  the  government  of  the  United  States  is  ade- 
quate and  safe  for  its  objects,  time  alone  can  absolutely  determine.  Ex- 
perience seems  to  have  shown  that,  whatever  may  grow  out  of  future 
stages  of  our  national  career,  there  is,  as  yet,  a  sufficient  control,  in  the 
popular  will,  over  the  executive  and  legislative  departments  of  the  govern- 
ment. When  the  alien  and  sedition-laws  were  passed  in  contravention  to 
the  opinions  and  feelings  of  the  community,  the  first  elections  that  ensued 
put  an  end  to  them.  And  whatever  may  have  been  the  character  of  other 
acts,  in  the  judgment  of  many  of  us,  it  is  but  true,  that  they  have  gene- 
rally accorded  with  the  views  of  a  majority  of  the  states  and  of  the  people. 
At  the  present  day  it  seems  well  understood,  that  the  laws  which  have 
created  most  dissatisfaction,  have  had  a  like  sanction  without  doors ;  and 
that,  whether  continued,  varied,  or  repealed,  a  like  proof  will  be  given  of 
the  sympathy  and  responsibility  of  the  representative  body  to  the  con- 
stituent body.  Indeed,  the  great  complaint  now  is,  against  the  results  of 
this  sympathy  and  responsibility  in  the  legislative  policy  of  the  nation. 

With  respect  to  the  judicial  power  of  the  United  States,  and  the  authority 
of  the  Supreme  Court  in  relation  to  the  boundary  of  jurisdiction  between 
the  federal  and  the  state  governments,  I  may  be  permitted  to  refer  to  the 
thirty-ninth  number  of  the  "  Federalist,"*  for  the  light  in  which  the 
subject  was  regarded  by  its  writer,  at  the  period  when  the  Constitution 
was  depending;  and  it  is  believed,  that  the  same  was  the  prevailing 
view  then  taken  of  it,  that  the  same  view  has  continued  to  prevail,  and 
that  it  does  so  at  this  time,  notwithstanding  the  eminent  exceptions  to  it. 

But  it  is  perfectly  consistent  with  the  concession  of  this  power  to  the 
Supreme  Court  in  cases  falling  within  the  course  of  its  functions,  to 

*  No.  39.  It  is  true,  that  in  controversies  relating  to  the  boundary  between  the  two 
jurisdictions,  the  tribunal  which  is  ultimately  to  decide,  is  to  be  established  under  the 
general  government.  But  this  does  not  change  the  principle  of  the  case.  The  decision 
is  to  be  impartially  made,  according  to  the  rules  of  the  Constitution;  and  all  the  usual 
and  most  effectual  precautions  are  taken  to  secure  this  impartiality.  Some  such  tri- 
bunal is  clearly  essential  to  prevent  an  appeal  to  the  sword,  and  a  dissolution  of  the 
compact ;  and  that  it  ought  to  be  established  under  the  general,  rather  than  under  the 
local  governments ;  or,  to  speak  more  properly,  that  it  could  be  safely  established  under 
the  first  alone,  is  a  position  not  likely  to  be  combatted.  (Note  by  Mr.  Madison.) 


APPENDIX. MADISON  TO  EVERETT.  253 

maintain  that  the  power  has  not  always  been  rightly  exercised.  To  say 
nothing  of  the  period,  happily  a  short  one,  when  judges  in  their  seats  did 
not  abstain  from  intemperate  and  party  harangues,  equally  at  variance 
with  their  duty  and  their  dignity,  there  have  been  occasional  decisions 
from  the  bench  which  have  incurred  serious  and  extensive  disapprobation. 
Still  it  would  seem  that,  with  but  few  exceptions,  the  course  of  the 
judiciary  has  been  hitherto  sustained  by  the  predominant  sense  of  the 
nation.  » 

Those  who  have  denied  or  doubted  the  supremacy  of  the  judicial  power 
of  the  United  States,  and  denounce  at  the  same  time  a  nullifying  power  in 
a  state,  seem  not  to  have  sufficiently  adverted  to  the  utter  inefficiency  of  a 
supremacy  in  a  law  of  the  land,  without  a  supremacy  in  the  exposition 
and  execution  of  the  law ;  nor  to  the  destruction  of  all  equipoise  between 
the  Federal  Government  and  the  state  governments,  if,  whilst  the  func- 
tionaries of  the  Federal  Government  are  directly  or  indirectly  elected  by 
and  responsible  to  the  states,  and  the  functionaries  of  the  states  are  in 
their  appointment  and  responsibility  wholly  independent  of  the  United 
States,  no  constitutional  control  of  any  sort  belonged  to  the  United  States 
over  the  states.  Under  such  an  organization,  it  is  evident  that  it  would 
be  in  the  power  of  the  state's,  individually,  to  pass  unauthorized  laws,  and 
to  carry  them  into  complete  effect,  anything  in  the  Constitution  and  laws 
of  the  United  States  to  the  contrary  notwithstanding.  This  would  be*  a 
nullifying  power  in  its  plenary  character ;  and  whether  it  had  its  final 
effect,  through  the  legislative,  executive  or  judiciary  organ  of  the  state, 
would  be  equally  fatal  to  the  constituted  relation  between  the  two  govern- 
ments, 

/    Should  the  provisions  of  the  Constitution  as  here  reviewed,  be  found  not 
/  to  secure  the  government  and  rights  of  the  states,  against  usurpations  and 
/      abuses  on  the  part  of  the  United  States,  the  final  resort  within  the  purview 
of  the  Constitution,  lies  in  an  amendment  of  the  Constitution,  according 
to  a  process  applicable  by  the  states. 

And  in  the  event  of  a  failure  of  every  constitutional  resort,  and  an 
accumulation  of  usurpations  and  abuses,  rendering  passive  obedience  and 
non-resistance  a  greater  evil  than  resistance  and  revolution,  there  can 
remain  but  one  resort,  the  last  of  all ;  an  appeal  from  the  cancelled  obli- 
gations of  the  constitutional  compact  to  original  rights  and  the  law  of 
self-preservation.  This  is  the  ultima  ratio  under  all  governments, 
whether  consolidated,  confederated,  or  a  compound  of  both;  and  it  cannot 
be  doubted  that  a  single  member  of  the  Union,  in  the  extremity  supposed, 
but  in  that  only,  would  have  a  right,  as  an  extra  and  ultra-constitutional 
Bright,  to  make  the  appeal. 

"This  brings  us  to  the  expedient  lately  advanced,  which  claims  for  a  sin- 
gle state  a  right  to  appeal  against  an  exercise  of  power  by  the  government 
of  the  United  States  decided  by  the  state  to  be  unconstitutional,  to  the  par- 
ties to  the,  constitutional  compact ;  the  decision  of  the  state  to  have  the 
effect  of  nullifying  the  act  of  the  government  of  the  United  States,  unless 
\  the  decision  of  the  state  be  reversed  by  three-fourths  of  the  parties. 

The  distinguished  names  and  high  authorities  which  appear  to  have 


254  APPENDIX. — MADISON  TO  EVERETT. 

asserted  and  given  a  practical  scope  to  this  doctrine,  entitle  it  to  a  respect 
which  it  might  be  difficult  otherwise  to  feel  for  it. 

If  the  doctrine  were  to  be  understood  as  requiring  the  three-fourths  of 
the  states  to  sustain,  instead  of  that  proportion  to  reverse  the  decision  of 
the  appealing  state,  the  decision  to  be  without  effect  during  the  appeal,  it 
would  be  sufficient  to  remark,  that  this  extra-constitutional  course  might 
well  give  way  to  that  marked  out  by  the  Constitution,  which  authorizes 
two-thirds  of  the  states  to  institute  and  three-fourths  to  effectuate  an  amend- 
ment of  the  Constitution,  establishing  a  permanent  rule  of  the  highest 
authority,  in  place  of  an  irregular  precedent  of  construction  only. 

But  it  is  understood  that  the  nullifying  doctrine  imports  that  the  decision 
of  the  state  is  to  be  presumed  valid,  and  that  it  overrules  the  law  of  the 
United  States,  unless  overruled  by  three-fourths  of  the  states. 
/  Can  more  be  necessary  to  demonstrate  the  inadmissibility  of  such  a  doc- 
(trine,  than  that  it  puts  it  in  the  power  of  the  smallest  fraction  over  one- 
fourth  of  the  United  States,  that  is,  of  seven  states  out  of  twenty-four,  to 
give  the  law  and  even  the  Constitution  to  seventeen  states,  each  of  the 
seventeen  having,  as  parties  to  the  Constitution,  an  equal  right  with  each 
of  the  seven,  to  expound  it,  and  to  insist  on  the  exposition?  That  the 
seven  might,  in  particular  instances  be  right,  and  the  seventeen  wrong,  is 
more  than  possible.  But  to  establish  a  positive  and  permanent  rule  giving 
such  a  power,  to  such  a  minority,  over  such  a  majority,  would  overturn 
the  first  principle  of  free  government,  and  in  practice  necessarily  overturn 
the  government  itself.-  0 

f  It  is  to  be  recollected  that  the  Constitution  was  proposed  to  the  people 
of  the  states  as  a  whole,  and  unanimously  adopted  by  the  states  as  a 
whole,  it  being  a  part  of  the  Constitution  that  not  less  than  three-fourths 
of  the  states  should  be  competent  to  make  any  alteration  in  what  had 
been  unanimously  agreed  to.  So  great  is  the  caution  on  this  point,  that 
in  two  cases  where  peculiar  interests  were  at  stake,  a  proportion  even  of 
three-fourths  is  distrusted,  and  unanimity  required  to  make  an  alteration. 

When  the  Constitution  was  adopted  as  a  whole,  it  is  certain  that  there 
were  many  parts,  which,  if  separately  proposed,  would  have  been  promptly 
rejected.  It  is  far  from  impossible,  that  every  part  of  a  constitution  might 
be  rejected  by  a  majority,  and  yet  taken  together  as  a  whole  be  unani- 
mously accepted.  Free  constitutions  will  rarely  if  ever  be  formed  with- 
out reciprocal  concessions ;  without  articles  conditioned  on  and  balancing 
each  other.  Is  there  a  constitution  of  a  single  state  out  of  the  twenty- 
four  that  would  bear  the  experiment  of  having  its  component  parts  sub- 
mitted to  the  people  and  separately  decided  on  1 

What  the  fate  of  the  Constitution  of  the  United  States  would  be  if  a 
small  proportion  of  the  states  could  expunge  parts  of  it  particularly  valued 
by  a  large  majority,  can  have  but  one  answer. 

The  difficulty  is  not  removed  by  limiting  the  doctrine  to  cases  of  con- 
struction. How  many  cases  of  that  sort,  involving  cardinal  provisions  of 
the  Constitution  have  occurred  ?  How  many  now  exist  ?  How  many  may 
hereafter  spring  up  1  How  many  might  be  ingeniously  created,  if  entitled 
to  the  privilege  of  a  decision  in  the  mode  proposed  ? 

Is  it  certain  that  the  principle  of  that  mode  would  not  reach  further 


APPENDIX. MADISON  TO  EVERETT.  255 

than  is  contemplated?  If  a  single  state  can  of  right  require  three-fourths 
of  its  co-states  to  overrule  its  exposition  of  the  Constitution,  because  that 
proportion  is  authorized  to  amend  it,  would  the"  plea  be  less  plausible  that, 
as  the  Constitution  was  unanimously  established,  it  ought  to  be  unani- 
mously expounded  1 

The  reply  to  all  such  suggestions  seems  to  be  unavoidable  and  irresisti- 
ble; that  the  Constitution  is  a  compact;  that  its  text  is  to  be  expounded 
according  to  the  provision  for  expounding  it — making  a  part  of  the  com- 
.  pact;  and  that  none  of  the  parties  can  rightfully  renounce  the  expounding  "&, 
provision  more  than  any  other  part.  When  such  a  right  accrues,  as  may 
accrue,  it  must  grow  out  of  the  compact  releasing  the  sufferers  from  their 
fealty  to  it. 

,  In  favour  of  the  nullifying  claim  for  the  states,  individually,  it  appears, 
as  you  observe,  that  the  proceedings  of  the  Legislature  of  Virginia,  in  '98 
and  '99,  against  the  alien  and  sedition-acts,  are  much  dwelt  upon. 

It  may  often  happen,  as  experience  proves,  that  erroneous  constructions, 
•not  anticipated,  may  not  be  sufficiently  guarded  against,  in  the  language 
used ;  and  it  is  due  to  the  distinguished  individuals,  who  have  miscon- 
ceived the  intention  of  those  proceedings,  to  suppose  that  the  meaning  of 
the  legislature,  though  well  comprehended  at  the  time,  may  not  now  be 
obvious  to  those  unacquainted  with  the  contemporary  indications  and  im- 
pressions. 

But  it  is  believed  that  by  keeping  in  view  the  distinction  between  the  ^ 
governments  of  the  states,  and  the  states  in  the  sense  In  which  they  were 
parties  to  the  Constitution  ;  between  the  rights  of  the  parties,  in  their  con- 
current and  in  their  individual  capacities ;  between  the  several  modes  and 
objects  of  interposition  against  the  abuses  of  power,  and  especially  be- 
tween interpositions  within  the  purview  of  the  Constitution,  and  interposi- 
tions appealing  from  the  Constitution  to  the  rights  of  nature  paramount  to 
all  constitutions ;  with  an  intention,  always  of  explanatory  use,  to  the 
views  and  arguments  which  were  combatted,  the  resolutions  of  Virginia, 
as  vindicated  in  the  report  on  them,  will  be  found  entitled  to  an  exposition, 
showing  a  consistency  in  their  parts,  and  an  inconsistency  of  the  whole 
with  the  doctrine  under  consideration. 

That  the  Legislature  could  not  have  intended  to  sanction  such  a  doc- 
trine, is  to  be  inferred  from  the  debates  in  the  House  of  Delegates,  and 
from  the  address  of  the  two  houses  to  their  constituents,  on  the  subject  of 
the  resolutions.  The  tenor  of  the  debates,  which  were  ably  conducted, 
and  are  understood  to  have  been  revised  for  the  press  by  most,  if  not  all, 
of  the  speakers,  discloses  no  reference  whatever  to  a  constitutional  right 
in  an  individual  state,  to  arrest  by  force  the  operation  of  a  law  of  the 
United  States.*  Concert  among  the  states  for  redress  against  the  alien 
and  sedition-laws,  as  acts  of  usurped  power,  was  a  leading  sentiment;  arid 
the  attainment  of  a  concert,  the  immediate  object  of  the  course  adopted 

*  Thus  Mr.  Mercer  (ante,  p.  42)  says,  "  Force  is  not  thought  of  by  any  one ;"  and 

V1-  Mr.  Barbour  (ante,  p.  59)  says,  he  was  "  for  using  no  violence,"  but,  "  for  giving  Con- 
gress  an  opportunity  of  repealing  those  obnoxious  laws."  See  also  Mr.  J.  Taylor, 
(ante,  p.  113,  and  ante,  p.  193.) 


256  APPENDIX. MADISON  TO  EVERETT. 

by  the  legislature,  which  was  that  of  inviting  the  other  states  "  to  concur 
in  declaring  the  acts  to  be  unconstitutional,  and  to  co-operate  by  the  ne- 
cessary and  proper  measures  in  maintaining  unimpaired  the  authorities, 
rights,  and  liberties  reserved  to  the  states  respectively  and  to  the  people."* 
That  by  the  necessary  and  proper  measures  to  be  concurrently  and  co- 

\  operatively  taken,  were   meant    measures    known   to    the  Constitution, 

particularly  the  ordinary  control  of  the  people  and  legislatures  of  the 

,.   ,  ^         states,  over  the  government  of  the  United  States,  cannot   be  doubted; 

and  the  interposition  of  this  control,  as  the  event  showed,  was  equal  to 

the  occasion. 

'  j  /It  is  worthy  of  remark,  and  explanatory  of  the  intentions  of  the  legis- 
lature, that  the  words  "  not  law,  but  utterly  null,  void,  and  of  no  force  or 
effect,"  which  had  followed,  in  one  of  the  resolutions,  the  word  "  uncon- 
stitutional," were  struck  out  by  common  consent.  Though  the  words 
were  in  fact  but  synonymous  with  "  unconstitutional ;"  yet  to  guard 
against  a  misunderstanding  of  this  phrase  as  more  than  declaratory  of 
opinion,  the  word  "  unconstitutional"  alone  was  retained,  as  not  liable  to 
that  danger. 

The  published  address  of  the  legislature  to  the  people,  their  constituents, 
affords  another  conclusive  evidence  of  its  views.  The  address  warns 
them  against  the  encroaching  spirit  of  the  general  government,  argues  the 
unconstitutionality  of  the  alien  and  sedition-acts,  points  to  other  instances 
in  which  the  constitutional  limits  had  been  overleaped ;  dwells  upon  the 
dangerous  mode  of  deriving  power  by  implication ;  and  in  general  presses 
the  necessity  of  watching  over  the  consolidating  tendency  of  the  federal 
policy.  But  nothing  is  said  that  can  be  understood  to  look  to  means  of 
maintaining  the  rights  of  the  states,  beyond  the  regular  ones,  within  the 
forms  of  the  Constitution. 

If  any  further  lights  on  the  subject  could  be  needed,  a  very  strong  one 
is  reflected  in  the  answers  to  the  resolutions,  by  the  states  which  protested 
against  them.  The  main  objection  of  these,  beyond  a  few  general  com-~ 

I  plaints  of  the  inflammatory  tendency  of  the  resolutions,  was  directed 
against  the  assumed  authority  of  a  state  legislature  to  declare  a  law  of 
the  United  States  unconstitutional,  which  they  pronounced  an  unwarranta- 
ble interference  with  the  exclusive  jurisdiction  of  the  Supreme  Court  of  the 
United  States.  Had  the  resolutions  been  regarded  as  avowing  and  main- 
taining a  right,  in  an  individual  state,  to  arrest,  by  force,  the  execution  of 
a  law  of  the  United  States,  it  must  be  presumed  that  it  would  have  been  a 
conspicuous  object  of  their  denunciation.  '  * 

With  cordial  salutations, 

JAMES  MADISON. 

*  See  the  concluding  resolution  of  1798. 


APPENDIX. MADISON  TO  INGERSOLL.  257 

•v, 

MR.  MADISON  TO  MR.  INGERSOLL. 

Montpelier,  Feb.  2,  1831. 
DEAR  SIR, — 

I  have  received  your  letter  of  January  21,  asking —  . 

1.  Is  there  any  state  power  to  make  banks? 

2.  Is  the  federal  power,  as  it  has  been  exercised,  or  as  proposed  to  be 
exercised  by  President  Jackson,  preferable  ? 

The  evil  which  produced  the  prohibitory  clause  in  the  Constitution  of 
the  United  States,  was  the  practice  of  the  states  in  making  bills  of  credit, 
and  in  some  instances  appraised  property,  "  a  legal  tender."  If  the  notes 
<&f  state  banks,  therefore,  whether  chartered  or  unchartered,  be  made  a 
legal  tender,  they  are  prohibited ;  if  not  made  a  legal  tender,  they  do  not 
fall  within  the  prohibitory  clause.  The  number  of  the  "  Federalist"  re- 
ferred to,  was  written  with  that  view  of  the  subject ;  and  this,  with  pro- 
bably other  cotemporary  expositions,  and  the  uninterrupted  practice  of  the 
states  in  creating  and  permitting  banks  without  making  their, notes  a  legal 
tender,  would  seem  to  be  a  bar  to  the  question,  if  it  were  not  inexpedient 
now  to  agitate  it. 

A  virtual  and  incidental  enforcement  of  the  depreciated  notes  of  state 
banks,  by  their  crowding  out  a  sound  medium,  though  a  great  evil,  was 
not  foreseen ;  and  if  it  had  been  apprehended,  it  is  questionable  whether 
the  Constitution  of  the  United  States,  which  had  so  many  obstacles  to 
encounter,  would  have  ventured  to  guard  against  it  by  an  additional  pro- 
vision. A  virtual,  and  it  is  hoped,  an  adequate  remedy,  may  hereafter  be 
found  in  the  refusal  of  state  paper  when  debased,  in  any  of  the  federal 
transactions,  and  in  the  control  of  the  federal  bank,  this  being  itself  con- 
trolled from  suspending  its  specie  payments  by  the  public  authority. 

On  the  other  question,  I  readily  decide  against  the  project  recommended 
by  the  President.  Reasons  more  than  sufficient  appear  to  have  been  pre- 
sented to  the  public,  in  the  reviews  and  other  comments  which  it  has 
called  forth.  How  far  a  hint  for  it  may  have  been  taken  taken  from  Mr. 
Jefferson,  I  know  not.  The  kindred  ideas  of  the  latter  may  be  seen  in 
his  Memoirs,  &c.,  vol.  iv.,  pages  196,  207,  526,  and  his  view  of  the  state 
banks,  vol.  iv.,  pages  199,  220. 

There  are  sundry  statutes  of  Virginia  prohibiting  the  circulation  of 
notes  payable  to  bearer,  whether  issued  by  individuals  or  unchartered 
banks. 

These  observations,  little  new  or  important  as  they  may  be,  would  have 
been  promptly  furnished,  but  for  an  indisposition  in  which  your  letter 
found  me,  and  which  has  not  yet  entirely  left  me.  I  hope  this  will  find 
you  in  good  health,  and  you  have  my  best  wishes  for  its  continuance,  and 
the  addition  of  every  other  blessing. 

JAMES  MADISON. 

Charles  J.  Ingersoll,  Esq.,  Harrisburg,  Pa. 


258  APPENDIX. MADISON  TO  INGERSOLL. 


MR.  MADISON  TO  MR.  INGERSOLL.  , 

Montpelier,  June  25,  1831. 
DEAR  SIR, — 

I  have  received  your  friendly  letter  of  the  18th  inst.  The  few  lines 
which  answered  your  former  one  of  the  21st  of  January  last,  were  writ- 
ten in  haste  and  in  bad  health  j  but  they  expressed,  though  without  the 
attention  in  some  respects  due  to  the  occasion,  a  dissent  from  the  views 
of  the  President,  as  to  a  bank  of  the  United  States  and  a  substitute  for  it ; 
to  which  I  cannot  but  adhere.  The  objections  to  the  latter  have  appeared 
to  me  to  preponderate  greatly  over  the  advantages  expected  from  it,  and 
the  constitutionality  of  the  former  I  still  regard  as  sustained  by  the  con- 
siderations to  which  I  yielded  in  giving  my  assent  to  the  existing  bank. 

The  charge  of  inconsistency  between  my  objection  to  the  constitution- 
ality of  such  a  bank  in  1791,  and  my  assent  in  1817,  turns  on  the  ques- 
tion, how  far  legislative  precedents,  expounding  the  Constitution,  ought  to 
guide  succeeding  legislatures,  and  to  overrule  individual  opinions. 

Some  obscurity  has  been  thrown  over  the  question,  by  confounding  it 
with  the  respect  due  from  one  legislature  to  laws  passed  by  preceding 
legislatures.  But  the  two  cases  are  essentially  different.  A  constitution 
being  derived  from  a  superior  authority,  is  to  be  expounded  and  obeyed, 
not  controlled  or  varied  by  the  subordinate  authority  of  the  legislature. 
A  law,  on  the  other  hand,  resting  on  no  higher  authority  than  that  pos- 
sessed by  every  successive  legislature,  its  expediency  as  well  as  its  mean- 
ing, is  within  the  scope  of  the  latter. 

The  case  in  question  has  its  true  analogy  in  the  obligation  arising  from 
judicial  expositions  of  the  law  on  succeeding  judges ;  the  constitution 
being  a  law  to  the  legislator,  as  the  law  is  a  rule  of  decision  to  the  judge. 

And  why  are  judicial  precedents,  when  formed  on  due  discussion  and 
consideration,  and  deliberately  sanctioned  by  reviews  and  repetitions',  re- 
garded as  of  binding  influence,  or  rather  of  authoritative  force,  in  settling 
the  meaning  of  a  law?  It  must  be  answered:  1st.  Because  it  is  a  rea* 
sonable  and  established  axiom,  that  the  good  of  society  requires  that  the 
rules  of  conduct  of  its  members  should  be  certain  and  known,  which 
would  not  be  the  case,  if  any  judge,  disregarding  the  decisions  of  his  pre- 
decessors, should  vary  the  rule  of  law  according  to  his  individual  inter- 
pretation of  it.  Misera  est,  servitus  ubijus  est  aut  vagum,  aut  incognitum. 
2d.  Because  an  exposition  of  the  law  publicly  made,  and  repeatedly  con- 
firmed by  the  constituted  authority,  carries  with  it,  by  fair  inference,  the 
sanction  of  those  who,  having  made  the  law  through  their  legislative 
organ,  appear  under  such  circumstances  to  have  determined  its  meaning 
through  their  judiciary  organ. 

Can  it  be  of  less  consequence  that  the  meaning  of  a  constitution  should 
be  fixed  and  known,  than  that  the  meaning  of  a  law  should  be  so  ?  Can 
indeed  a  law  be  fixed  in  its  meaning  and  operation,  unless  the  constitution 
be  so  ?  On  the  contrary,  if  a  particular  legislature,  differing  in  the  con- 


APPENDIX. MADISON  TO  INGERSOLL.  259 

struction  of  the  constitution,  from  a  series  of  preceding  constructions,  pro- 
ceed to  act  on  that  difference,  they  not  only  introduce  uncertainty  and  in- 
stability in  the  constitution,  but  in  the  laws  themselves ;  inasmuch  as  all 
laws  preceding  the  flew  construction  and  inconsistent  with  it,  are  not  only 
annulled  for  the  future,  but  virtually  pronounced  nullities  from  the  be- 
ginning. 

But  it  is  said  that  the  legislator,  having  sworn  to  support  the  constitu- 
tion, must  support  it  in  his  own  construction  of  it,  however  different  from 
that  put  on  it  by  his  predecessors,  or  whatever  be  the  consequences  of  the 
construction.  And  is  not  the  judge  under  the  same  oath  to  support  the 
law  ?  yet  has  it  ever  been  supposed  that  he  was  required,  or  at  liberty  to 
disregard  all  precedents,  however  solemnly  repeated  and  regularly  ob- 
served ;  and,  by  giving  effect  to  his  own  abstract  and  individual  opinions, 
to  disturb  the  established  course  of  practice  in  the  business  of  the  com- 
munity? Has  the  wisest  and  most  conscientious  judge  ever  scrupled  to 
acquiesce  in  decisions  in  which  he  has  been  overruled  by  the  mature 
opinions  o£  the  majority  of  his  colleagues,  and  subsequently  to  conform 
himself  thereto,  as  to  authoritative  expositions  of  the  law  ?  And  is  it  not 
reasonable  that  the  same  view  of  the  official  oath  should  be  taken  by  a 
legislator,  acting  under  the  constitution,  which  is  his  guide,  as  is  taken  by 
a  judge,  acting  under  the  law,  which  is  his  ? 

There  is  in  fact  and  in  common  understanding,  a  necessity  of  regarding 
a  course  of  practice,  as  above  characterized,  in  the  light  of  a  legal  rule  of 
interpreting  a  law ;  and  there  is  a  like  necessity  of  considering  it  a  con- 
stitutional rule  of  interpreting  a  constitution. 

That  there  may  be  extraordinary  and  peculiar  circumstances  control- 
ling the  rule  in  both  cases,  may  be  admitted  :  but  with  such  exceptions, 
the  rule  will  force  itself  on  the  practical  judgment  of  the  most  ardent 
theorist.  He  will  find  it  impossible  to  adhere  to,  and  act  officially  upon, 
his  solitary  opinions  as  to  the  meaning  of  the  law  or  constitution,  in  op- 
position to  a  construction  reduced  to  practice,  during  a  reasonable  period 
of  time ;  more  especially  where  no  prospect  existed  of  a  change  of  con- 
struction by  the  public  or  its  agents.  And  if  a  reasonable  period  of  time, 
marked  with  the  usual  sanctions,  would  not  bar  the  individual  preroga- 
tive, there  could  be  no  limitation  to  its  exercise,  although  the  danger  of 
error  must  increase  with  the  increasing  oblivion  of  explanatory  circum- 
stances, and  with  the  continual  changes  in  the  import  of  words  and 
phrases. 

Let  it  then  be  left  to  the  decision  of  every  intelligent  and  candid  judge, 
which,  on  the  whole,  is  most  to  be  relied  on  for  the  true  and  safe  con- 
struction of  a  constitution,  that  which  has  the  uniform  sanction  of  suc- 
cessive legislative  bodies  through  a  period  of  years,  and  under  the  varied 
ascendency  of  parties ;  or  that  which  depends  upon  the  opinions  of  every 
new  legislature,  heated  as  it  may  be  by  the  spirit  of  party,  eager  in  the 
pursuit  of  some  favourite  object,  or  led  astray  by  the  eloquence  and  ad- 
dress of  popular  statesmen,  themselves,  perhaps,  under  the  influence  of 
the  same  misleading  causes. 

It  was  in  conformity  with  the  view  here  taken  of  the  respect  due  to 
deliberate  and  reiterated  precedents,  that  the  Bank  of  the  United  States, 


260  APPENDIX. MADISON  TO  INGERSOLL. 

though  on  the  original  question  held  to  be  unconstitutional,  received  the 
executive  signature  in  the  year  1817.  The  act  originally  establishing  a 
bank  had  undergone  ample  discussions  in  its  passage  through  the  several 
branches  of  the  government.  It  had  been  carried  into  execution  through- 
out a  period  of  twenty  years  with  annual  legislative  recognitions ;  in  one 
instance  indeed,  with  a  positive  ramification  of  it  into  a  new  state ;  and 
with  the  entire  acquiescence  of  all  the  local  authorities,  as  well  as  of  the 
nation  at  large,  to  all  of  which  may  be  added,  a  decreasing  prospect  of 
any  change  in  the  public  opinion  adverse  to  the  constitutionality  of  such 
an  institution.  A  veto  from  the  executive  under  these  circumstances, 
with  an  admission  of  the  expediency,  and  almost  necessity  of  the  measure, 
would  have  been  a  defiance  of  all  the  obligations  derived  from  a  course  of 
precedents  amounting  to  the  requisite  evidence  of  the  national  judgment 
and  intention. 

It  has  been  contended  that  the  authority  of  precedents  was  in  that  case 
invalidated  by  the  consideration,  that  they  proved  only  a  respect  for  the 
stipulated  duration  of  the  bank,  with  a  toleration  of  it  until  the*law  should 
expire,  and  by  the  casting  vote  given  in  the  Senate  by  the  Vice-President 
in  the  year  1811,  against  a  bill  for  establishing  a  national  bank,  the  vote 
being  expressly  given  on  the  ground  of  unconstitutionality.  But  if  the 
law  itself  was  unconstitutional,  the  stipulation  was  void,  and  could  not  be 
constitutionally  fulfilled  or  tolerated.  And  as  to  the  negative  of  the  Senate 
by  the  casting  vote  of  the  presiding  officer,  it  is  a  fact  well  understood  at 
the  time,  that  it  resulted  not  from  an  equality  of  opinions  in  that  assembly 
on  the  power  of  Congress  to  establish  a  bank,  but  from  a  junction  of  those 
who  admitted  the  power,  but  disapproved  the  plan,  with  those  who  denied 
the  power.  On  a  simple  question  of  constitutionality,  there  was  a  decided 
majority  in  favour  of  it. 

Mrs.  Madison  joins  me  in  hoping  that  you  will  not  fail  to  make  the  in- 
tended visit  to  Virginia,  which  promises  us  the  pleasure  of  welcoming  you 
to  our  domicile,  and  in  a  sincere  return  of  all  the  good  wishes  you  kindly 
express  for  us. 

JAMES  MADISON. 

Mr.  Ingersoll. 


INDEX. 


A. 


Agriculture,  Report  on,  1797,  199,  200. 
Alien  Act,  117. 

Held  constitutionality  R.  Island,  169. 
Massachu- 
setts, 170. 
Connecti- 
cut, 175. 
N.  Hamp- 
shire,!^. 
Held  unconstitutional  by  Virginia, 

23. 

Constitutionality  discussed  in  Vir- 
ginia Report,  203. 
Unites    legislative,   executive,   and 

judicial  powers,  209. 
Subverts  principles  of  free  govern- 
ment, 210. 

Subverts  U.  S.  Constitution,  210. 
And  Sedition  Act,  not  to  be  resisted 
by  force,  41,  42,  54,  59,   113, 
115,  230,  253. 
Allen,  John,  Speech  of  for  the  Resolu- 

lutions,  52. 

Amendments,  to  instructions  to  Senators, 
January  4, 1800,  244  to 
248. 
To  Virginia  Resolutions,  by 

Mr.  Giles,  148. 
To    Virginia    Resolutions, 
rejected,  150,  155,  156, 
158. 

Analysis  of  Virginia  Report,  178. 
Appendix,  249  to  260. 
Army,   of  United    States,   increase    con- 
demned, 239. 

Regular,  objectionable,  241. 
Assembly,   General,  of   Virginia,   list  of 

members,  1798-9,  159. 
Assembly,  General,   of   Virginia,  list  of 

members,  1799, 1800,  233. 
Ayes  and  Noes,  on  instructions  to  Sena- 
tors, January  4,  1800, 
244  to  248. 
On    Virginia    Resolutions, 

156  to  158. 
On  Virginia  Report,  236-7. 


B. 


Bailey,  Thomas  M.,  Speech  against  the 

Resolutions,  122. 
Bank  Law  of  1791, 197. 
Barbour,  James,  Speech  for  the  Resolu- 
tions, 54. 

Boiling,  P.,  Speech  against  Lee's  amend- 
ment to  Resolutions,  148. 
Brooke,  Edmund,  Speeches  against  Vir- 
ginia Resolutions, 
79,  99. 

Moves  to  amend  Reso- 
lutions, 150. 
Amendment    laid    on 
table,  150. 


C. 


Carriage  tax,  198. 

Common  defence,  clause  in  federal  Consti- 
tution relative  to,  199,  201. 
Common  law,  no  part  of  laws  of  United 

States,  243. 

Argumen-t  against,  as  part 
of  federal  jurisprudence, 
211  to  217. 

Not  the  general  law  prior 
to  the  Revolution,  211. 
Not  introduced  by  Revolu- 
tion, 212. 

Nor  by  articles  of  Confede- 
ration, 213. 

Nor  by  present  Constitu- 
tion, 213  to  217. 
Difficulties  of  opposite  con- 
struction, 215. 
Consequences  of  opposite 

construction,  216. 
Compact,  Federal  Constitution  one,  190. 

See  Constitution. 

Connecticut,  Counter  Resolutions  of,  175. 
Construction  of  Federal  Constitution. 

See  Constitution. 
Consolidation  of  these  states,  201-2. 


262 


INDEX. 


Constitution  of  United  States. 

See  Alien  Act  and  Sedi- 
tion Act.    ' 
Common  Law. 
Is  a  compact,  to  which  the  states  are 

parties,  190,  191. 

How  breach  of  it  is  determined,  192. 
Construction  by  states,  in  last  resort, 

192  to  196. 

Not  to  be  vindicated,  by  force,  by 
states,  41,  42,  54,  59,  113,  115,  230, 
255. 
Construction  by  judiciary,  and  other 

departments,  195. 
Forced  constructions  of,  197-8. 
General  phrases  in,  interpreted,  199- 

201. 
Confers  not  powers  on  states,  but  is 

derived  from  them,  208. 
Subverted  by  alien  law,  210. 
Does  not  justify  sedition  law,  210  to 

224. 

Rules  for  construing,  218. 
Counter-resolutions  of  Delaware,  168. 

Rhode  Island,  169. 
Massachusetts, 170. 
Connecticut,  175. 
N.  Hampshire,  176. 
N.  York,  174. 
Vermont,  177. 

How  received  by  the  Virginia  Legis- 
lature, 189. 

Cowan,  William,  Speech  against  the  Re- 
solutions, 100. 

Cureton,  James,  Speeches  against  the  Re- 
solutions, 109,  111. 


D. 


Daniel,  William,  Speech  for  the  Resolu- 
tions, 83. 

Debate  on  Virginia  Resolutions,  24  to  158. 
Delaware,  Counter- Resolutions  of,  166. 
Delegates,  House  of,  orders  5000  copies  of 

Virginia  Report,  233. 
List  of  members,  1798-9,  159. 

1799-1800,  233. 
Departments,  Judicial.    See  Judiciary  and 

Constitution. 
Construction  of  Constitution  by,  195- 

196. 
Blended  by  Alien  Act,  209. 


E. 


Everett,  Edward,  Mr.  Madison's  Letter 

to,  249. 
Executive,  in  the  event  of  consolidation  of 

states,  201-2. 
Blended  with  other  departments  by 

Alien  Act,  209. 


F. 


Foushee,  William,  Speech  for  the  Resolu- 
tions, 76. 

Force,  not  contemplated  by  Virginia  Re- 
solutions. See  Virginia  Resolu- 
tions. 

France,  Difficulties  of  the  United  States, 

with,  238-9. 
Intercourse  with,  241. 


G. 


General  Assembly.    See  Assembly. 

General   phrases    in    Constitution,  their 
meaning,  199  to  201. 

General  welfare,  clause  relative  to,  201. 

Giles,  William  B.,  Speech  for  the  Resolu- 
tions, 143. 
Moves   amendment    to   Resolutions, 

which  is  accepted,  148. 
Speech  against  Lee's  amendment,  150. 

Government,  Federal,  powers  result  from 
compact,  190-91. 


I. 


Ingersoll,  Charles  J.,  Mr.  Madison's  Letter 

to,  257,  258. 
Instructions  to  Virginia  Senators,  January, 

1800,  238. 
Amendments  to  proposed,  244 

to  248. 

International  Law,  Operation  on  Aliens. 
205-6. 


J. 


Johnston,  Peter,  Speech  for  the  Resolu- 
tions, 109. 
Judiciary,  to  construe  Constitution  in  last 

resort. 

Affirmed  by  Rhode  Island,  169. 
Massachusetts,  170. 
New  York,  174. 
N.  Hampshire,  176. 
Vermont,  177. 
Denied  by  Virginia  Report,  195, 

196. 
Blended  with  other  departments 

by  Alien  Act,  209. 
Justice,  preventive  and  punitive,  203-4. 


K. 


Kentucky  Resolutions,  162. 

Condemned  by  New  York,  174. 

New  Hampshire,  176. 


L. 


Law,  See  Common  Law  and  International 
Law, 


INDEX. 


263 


Lee,   General  Henry,  Speeches    agains 
Virginia    Resolutions,   103,   150- 

153. 

Moves  to  amend  Resolutions,  160 
Debate  on  his  amendment,  150  t 

155. 
Amendment  rejected,  and  vote,  155 

156. 
Legislature  of  States  not  to  construe  Con 

stitution. 

Affirmed  by  Rhode  Island,  169. 
Massachusetts,  170 
New  York,  174. 
N.Hampshire,  176. 
Vermont,  177. 
Doctrine  of  Virginia  Report 

230. 

Of  Virginia,    instructions    to 
Senators,  January,  1800 
238. 
Resolutions  1798-9.     See 

Virginia  Resolutions. 
Report  to  1799-1800.    See 

Virginia  Report. 
Blended  with   other   depart- 
ments by  Alien  Act,  209. 
Letters,  Madison  to  Everett,  249. 
Ingersoll,  257. 
Same,  258. 


M. 


Madison,  James,  Letter  to  Everett,  249. 

Ingersoll,  257-8. 
Magill,   Archibald.     Speech  against  the 

Resolutions,  71. 

Manufactures,  Report  on,  1791,  191. 
Mason,   Stevens   T.,  Instructions    to    as 

Senator,  January,  1800,  238. 
Massachusetts,  counter  Resolutions  of,  170. 
Condemns  Virginia  Reso- 
lutions, 170., 
Mercer,  Jno.,  Speech  for  the  Resolutions, 

40. 
Military  Establishment  of  United  States. 

See  Army. 
Militia,  Natural  defence  of  United  States, 

240-41. 
Monarchy,  result  of  consolidation  of  states, 

201. 


N. 


Navy,  increase  condemned,  242-3. 
Necessary  and  proper,  what  laws  are,  9, 

207,  219. 
New  Hampshire,  Counter-Resolutions  of, 

176. 

New  York,  Counter-Resolutions  of,  174. 
Nicholas,  Wilson  C.,  instructions  to  as 

senator,  238. 

Speeches  for  the  Resolutions,  99, 154. 
Noes  and  ayes — See  Ayes  and  Noes. 


P. 


Pope,  John,  speeches  for  the  Resolutions, 

50,  82. 
Press,  freedom  of,  220. 


R. 


Report  of  Virginia.    See  Virginia  Report. 
Resistance,  forcible,  not  contemplated  by, 
Resolutions.     See    Virginia  Reso- 
lutions. 
Resolutions  of  Virginia.     See    Virginia 

Resolutions. 

Of  Kentucky.    See  Kentucky  Reso- 
lutions. 

Counter.    See  Counter-Resolutions. 
Rhode  Island, Counter- Resolutions  of,  169. 
Ruffin,  Wm.,  speech  for  the  Resolutions, 
38. 


S. 

Sedition  Act,  20. 

Held  constitutional  by  Rhode  Island, 

169. 

Massachusetts,  170. 
New  York,  174. 
Connecticut,  175. 
New  Hampshire,  176. 
Vermont,  177. 
Held    unconstitutional   by    Virginia, 

Argument  against  its  constitutionality, 

200  to  224. 

Exercises  powers  not  delegated,  200. 
Exercises  powers  prohibited,  219. 
Ought    to   produce  universal  alarm, 

224. 
Senate    of    Virginia,    list    of   members, 

1798-9,  158. 
1799-1800,  237. 
Senators  of  Virginia,  instructions  to,  Jan. 

1800,  238. 

Speeches,  in  favour  of  the  Resolutions. 
Taylor,  John,  24,  111,  148. 
Ruffin,  William,  38.     • 
Mercer,  John,  40. 


Pope,  John," 50,"  82. 
Allen,  ' 


,  John,  52. 

Barbour,  James,  54. 
Foushee,  William,  76. 
Daniel,  William,  83. 
Nicholas,  Wilson  C.,  99,  150. 
Johnston,  Peter,  109. 
Giles,  William  B.,  143,  150. 
Boiling,  P.,  148. 
Tyler,  Samuel,  154. 
Speeches  against  the  Resolutions. 
Taylor, -George  Keith,  29,  122. 
Magill,  Archibald,  71. 
Brooke,  Edmund,  79,  99. 
Cureton,  James,  109,  111. 


264 


INDEX. 


Speeches  against  the  Resolutions. 
Lee,  Henry,  103,  150,  153. 
Cowan,  William,  100. 
Bailey,  Thomas  M.,  122. 
States,  Legislatures  of.    See  Legislature. 
Parties  to  Federal  Constitution,  191. 
Meaning  of  term,  191. 
To  interpose  to  arrest  usurpation,  &c., 

192. 
Their    consolidation, — a    monarchy, 

201. 
Do  not  derive  their  powers  from  the 

Federal  Constitution,  208-9. 


T. 


Taylor,  John,  speeches  for  the  Resolutions, 

24,  111,  148. 

Accepts  Mr.  Giles's  amendment,  148. 
His  resolutions  as  offered,  148. 
adopted,  22. 

See  Virginia  Resolutions. 
Taylor,  George  Keith,  Speeches  against 

the  Resolutions,  29,  122. 
Tyler  Samuel,  Speech  for  the  Resolutions, 
154. 


V. 


Vermont,  Counter-Resolutions  of,  177. 
Virginia  Instructions  to  Senators,  January, 

1800,  238. 
Virginia  Report,  1799-1800,  189. 

5000  copies  printed,  233. 

Preamble  to,  189. 

Analysis  of,  178. 


Virginia  Report,  recites  and  comments  on 
1st  Resolution,  1798-9,  189. 
2d  Resolution,  190. 
3d  190. 

4th  196. 

5th  Alien  Act,  202. 

Sedition  Act,  210. 
6th  228. 

7th  and  8th        230. 
Vote  on,  236-7. 
Virginia  Resolutions,  1798-9,  as  offered, 

148. 

as  adopted,  22. 
Condemned  by  Delaware,  168. 

Massachusetts,  170. 
New  York,  174. 
Connecticut,  175. 
New  Hampshire,  176. 
Vermont,  177. 
Recited  and  commented  on  in  Virginia 

Report.     See  Virginia  Report. 
Debates  on,  24  to  158. 
Offered  by  John  Taylor,  24. 

See  Speeches. 
Votes  on  in  House  of  Delegates,  155  to 

158. 

Senate,  158. 

Did  not  contemplate  force, 
According  to  Report,  230  to  232. 
Mr.  Madison,  255. 
Mercer,  41,  42. 
B arbour,  54, 59. 
J.Taylor,  113,  115. 
Amended  in  passage,  150. 
Amendments  proposed  and  rejected, 

150  to  157. 
Vote  on,  157. 

Votes  on  Resolutions,  155  to  158. 
on  Report,  236-7. 


YC 


OO  i  L 


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